C O M M I S S I O N O F I N Q U I RY I N T O S TAT E C A P T U R E
H E L D AT
PA R K T O W N , J O H A N N E S B U R G

10

2 7 F E B R U A RY 2 0 2 0

D AY 2 2 0
FINAL

20

27 FEBRUARY 2020 – DAY 220
P R O C E E D I N G S R E S U M E O N 2 7 F E B R U A RY 2 0 2 0
C H A I R P E R S O N : G o o d m o r n i n g M r N i c h o l s o n , g o o d m o r n i n g e v e r y b o d y.
ADV WILLIAM NICHOLSON: Good morning DCJ.
CHAIRPERSON: Are you ready?
A D V W I L L I A M N I C H O L S O N : I a m r e a d y C h a i r.
C H A I R P E R S O N : Ye s o k a y l e t u s s t a r t .
ADV WILLIAM NICHOLSON:

Chair the witness that will be testifying

today is Advocate Cyril Simphiwe Mlotshwa.
DPP of the Province of KwaZulu-Natal.
10

P i e t e r m a r i t z b u r g b a r.

He is the former acting

He is now a Member of the

Advocate Mlotshwa will deal with a – with his

involvement in the Cato Manor prosecution and primarily and other
r e l a t e d i s s u e s o f t h e N PA . W i t h t h e l e a v e ’s C h a i r m a y t h e w i t n e s s b e
sworn in?
CHAIRPERSON:

H’mm.

Thank you please administer the oath or

a ff i r m a t i o n .
REGISTRAR: Please state your full names for the record?
A D V M L O T S H WA : C y r i l S i m p h i w e M l o t s h w a .
REGISTRAR: Do you have any objection to taking the prescribed oath?
A D V M L O T S H WA : N o n e .
20

CHAIRPERSON:

Do you consider the oath to be binding on your

conscience?
A D V M L O T S H WA : Ye s .
REGISTRAR: Do you swear that the evidence you will give will be the
truth; the whole truth and nothing else but the truth if so please raise
y o u r r i g h t h a n d a n d s a y, s o h e l p m e G o d .

Page 2 of 77

27 FEBRUARY 2020 – DAY 220
A D V M L O T S H WA : S o h e l p m e G o d .
ADV WILLIAM NICHOLSON: Chair there is a bundle prepared for the
C h a i r.

The bundle has been marked Exhibit RR6.

W i t h t h e C h a i r ’s

leave may the bundle be handed in?
C H A I R P E R S O N : T h e a ff i d a v i t o f M r C y r i l S i m p h i w e M l o t s h w a d e p o s e d
to on the 9th of December 2019 together with its annexures is admitted
and will be marked as Exhibit RR6.
ADV WILLIAM NICHOLSON:

I a m i n d e b t e d C h a i r.

Mr Mlotshwa can

you have a look at the bundle before you at pages 1 and 2?
10

A D V M L O T S H WA : Ye s .
ADV WILLIAM NICHOLSON:

Can you – are you able to identify that

document?
A D V M L O T S H WA : Ye s i t i s a c o n f i r m a t o r y a ff i d a v i t t h a t I d e p o s e d t o i n
December 2019.
A D V W I L L I A M N I C H O L S O N : O k a y. T h e s i g n a t u r e o n t h e s e c o n d p a g e
is that yours
A D V M L O T S H WA : A b s o l u t e l y.
ADV WILLIAM NICHOLSON:

And the signature and the initials

...(intervenes).
20

CHAIRPERSON: That is ...(intervenes).
A D V M L O T S H WA : T h a t i s c o r r e c t .
ADV WILLIAM NICHOLSON: Under deponent.
CHAIRPERSON: There are two signatures on page 2 so the one under
– above deponent is yours?
A D V M L O T S H WA : T h a t i s c o r r e c t C h a i r p e r s o n .

Page 3 of 77

27 FEBRUARY 2020 – DAY 220
CHAIRPERSON: Ja.
ADV WILLIAM NICHOLSON:

And the second signature is that the

signature of the Commissioner of Oaths?
A D V M L O T S H WA : T h a t i s t h e p o s i t i o n .
ADV WILLIAM NICHOLSON:

On page 1 there are two sets of initials

whose initials are those?
A D V M L O T S H WA : T h e f i r s t o n e w i l l b e m i n e o n y o u r l e f t .
ADV WILLIAM NICHOLSON: And the second one?
A D V M L O T S H WA :
10

The second one will be that of a Commissioner of

Oaths who administered the oath to me.
A D V W I L L I A M N I C H O L S O N : O k a y. N o w t h i s a ff i d a v i t a t p a g e s 1 a n d 2
c o n f i r m s a n a ff i d a v i t w h i c h i s a t p a g e s 4 a n d 5 , i s t h a t c o r r e c t ?
A D V M L O T S H WA : T h a t i s c o r r e c t s i r.
A D V W I L L I A M N I C H O L S O N : A r e y o u t h e d e p o n e n t o f t h a t a ff i d a v i t a t
pages 4 and 5?
A D V M L O T S H WA : A b s o l u t e l y.
ADV WILLIAM NICHOLSON: And the initials at the bottom right hand
are those your initials?
A D V M L O T S H WA : Ye s i n i t i a l s y e s m i n e .

20

ADV WILLIAM NICHOLSON: And on the left hand side are those the
C o m m i s s i o n e r o f O a t h ’s ?
A D V M L O T S H WA : T h a t i s t h e p o s i t i o n .
ADV WILLIAM NICHOLSON: And then on the – at page 5 we have a
full signature above what is typed out C S Mlotshwa, is that your
signature?

Page 4 of 77

27 FEBRUARY 2020 – DAY 220
A D V M L O T S H WA : T h a t i s c o r r e c t S i r.
ADV WILLIAM NICHOLSON: And the signature below that is that of the
Commissioner of Oaths?
A D V M L O T S H WA : T h a t i s t h e p o s i t i o n .
ADV WILLIAM NICHOLSON:

O k a y.

At page 6 we have another

a ff i d a v i t . C a n y o u c o n f i r m – d o y o u i d e n t i f y t h e s e d o c u m e n t s ? L e t m e
put it that way?
A D V M L O T S H WA :

Sir the position is if one meticulously looks at the

a ff i d a v i t t h a t y o u h a v e r e f e r r e d t o o n p a g e 4 a n d 5 i t m a k e s r e f e r e n c e
10

t o e - m a i l s t h a t w e r e e x c h a n g e d . S o a s I d e p o s e d t o t h a t a ff i d a v i t o n 1 2
May 2015 I was a few months in July approached by the same
Commissioner of Oaths requesting me to hand to him the e-mails that I
had give – I had referred to in the initial e-mail.

So it is just an

a ff i d a v i t t h a t w a s c o n f i r m i n g t h e h a n d i n g o v e r o f t h o s e e - m a i l s t o t h e
i n v e s t i g a t i n g o ff i c e r a t t h e t i m e . I t h i n k h e w a s C o l o n e l D a w e .
ADV WILLIAM NICHOLSON:

And at pages 7 to 12 are those the e-

mails you referring to ...(intervenes).
A D V M L O T S H WA : T h a t i s t h e p o s i t i o n s i r.
ADV WILLIAM NICHOLSON: Okay now at pages 40 to 67 of the bundle
20

can you identify that document?
A D V M L O T S H WA :

Ye s I t h i n k t h i s w i l l r e l a t e t o t h e e v i d e n c e t h a t I

tendered before the Mokgoro Commission of Inquiry in respect of two
N PA s e n i o r o ff i c i a l s .
ADV WILLIAM NICHOLSON:

Is the correct name Justice Mokgoro

Inquiry?

Page 5 of 77

27 FEBRUARY 2020 – DAY 220
A D V M L O T S H WA : I c o n f i r m t h a t S i r.
ADV WILLIAM NICHOLSON: And did you testify on the 1st of February
2019?
A D V M L O T S H WA : T h a t i s c o r r e c t .
ADV WILLIAM NICHOLSON: Does your testimony go from page 14 to
page 67 of the bundle?
CHAIRPERSON: Well ...(intervenes).
A D V M L O T S H WA : T h a t i s a l s o t r u e s i r.
CHAIRPERSON: Starts from 15 is it not? Page 14 is just the covering
10

page.
ADV WILLIAM NICHOLSON: That is correct. Does your testimony go
from page 15 to page 67 of the bundle?
A D V M L O T S H WA :

Yo u r W o r s h i p i t – m y a p o l o g i e s .

Chairperson it

seems it goes further than that because there will be cross-examination
from I think page 68.
C H A I R P E R S O N : To 1 0 6 ?
A D V M L O T S H WA : To . . . ( i n t e r v e n e s ) .
CHAIRPERSON: Maybe re-examination as well? I think what we need
is have you recently had a look at this document.
20

A D V M L O T S H WA :

Indeed Chairperson I was accorded an opportunity

to do so.
CHAIRPERSON: Does it correctly reflect the evidence that you gave at
the Inquiry chaired by Justice Mokgoro last year that is 2019?
A D V M L O T S H WA : I c o n f i r m C h a i r.
C H A I R P E R S O N : Yo u c o n f i r m ?

Page 6 of 77

27 FEBRUARY 2020 – DAY 220
A D V M L O T S H WA : Ye s .
C H A I R P E R S O N : O k a y. T h a n k y o u .
A D V W I L L I A M N I C H O L S O N : I a m i n d e b t e d C h a i r. N o w M r M l o t s h w a i f
we can just start – where are you currently employed?
A D V M L O T S H WA : S o c u r r e n t l y I a m a t t h e P i e t e r m a r i t z b u r g A d v o c a t e s
B a r.
ADV WILLIAM NICHOLSON: And how long have you been there?
A D V M L O T S H WA : I r e s i g n e d i n t h e N PA e n d o f t h e y e a r 2 0 1 5 a n d a t
the commencement of the year 2016 I was attached to the Pupillage
10

P r o g r a m w h i c h I c o m p l e t e d e n d o f 2 0 1 6 . S o w i t h e ff e c t f r o m 2 0 1 7 I a m
p r a c t i c i n g a s a n a d v o c a t e a t t h e P i e t e r m a r i t z b u r g C o n s t i t u e n t B a r.
ADV WILLIAM NICHOLSON:

Before joining the bar where were you

employed?
A D V M L O T S H WA : I w i l l s a y I h a v e b e e n i n t h e j u s t i c e s y s t e m – I w a s
in the justice system for almost 16 years having started as a court
interpreter in Durban.

Appointed as a court – a District Court

P r o s e c u t o r i n Ve r u l a m 1 9 9 8 / 9 9 I w a s t r a n s f e r r e d t o S t a n g e r M a g i s t r a t e
Court 2000/2001 I was in the Regional Court Stanger in the middle of
2001
20

I

was

appointed

as

a

P i e t e r m a r i t z b u r g A d v o c a t e s B a r.

State

Advocate

stationed

at

the

After three years of which will be

2003 I was elevated into the position of a senior State Advocate and
then in the year 2008 I was appointed as a Deputy Director of
Prosecutions KwaZulu-Natal and then in the year 2010 until 2012 I was
appointed as the acting Director of Public Prosecutions for the Province
KwaZulu-Natal.

Page 7 of 77

27 FEBRUARY 2020 – DAY 220
ADV WILLIAM NICHOLSON: Can you just tell us for which period were
the acting Director of Public Prosecutions for the Province KwaZuluNatal?
A D V M L O T S H WA : I t i s e ff e c t i v e f r o m t h e 1 7 t h o f M a y 2 0 1 0 a n d I t h i n k I
was recalled or I stepped down. If I am not mistaken on a Friday the
9 t h o f J u l y 2 0 1 0 e ff e c t i v e l y t w o y e a r s .
A D V W I L L I A M N I C H O L S O N : O k a y. A n d w h o r e p l a c e d y o u ?
A D V M L O T S H WA : M y s u c c e s s o r w a s A d v o c a t e M o i p o n e N o k o .
ADV WILLIAM NICHOLSON:
10

Did she replace you in an acting

capacity?
A D V M L O T S H WA :

I think so.

When I was recalled she was also

appointed to act. And acting position that was confirmed permanently if
I am not mistaken 2013/2014.
A D V W I L L I A M N I C H O L S O N : O k a y. N o w i f w e c a n j u s t b e f o r e w e m o v e
onto

your

a ff i d a v i t s

very

briefly

what

is

a

Director

of

Public

Prosecutions?
A D V M L O T S H WA : I f o n e l o o k s a t t h e c o n s t i t u t i o n f i r s t l y S e c t i o n 1 7 9 i t
speaks of ...(intervenes).
CHAIRPERSON: Sorry – I am sorry what was that question?
20

ADV

WILLIAM

NICHOLSON:

What

is

a

Director

of

Public

Prosecutions?
CHAIRPERSON: No we know what a Director of Public Prosecutions is.
ADV WILLIAM NICHOLSON: Thank you.
CHAIRPERSON: Let us go to matters that are really important for the
witness.

Page 8 of 77

27 FEBRUARY 2020 – DAY 220
A D V W I L L I A M N I C H O L S O N : O k a y.
CHAIRPERSON:

Mr Mlotshwa you gave evidence already in the

Inquiry that was chaired by Justice Mokgoro it would appear that here
you would be needing to traverse the same issues.

Since we already

have a transcript of your evidence in that inquiry and you have
confirmed that this transcript correctly reflects your evidence the
Evidence Leader will focus on what may be important where it is
necessary to get clarification or for you to cover just certain things
because otherwise your evidence was under oath, you were cross10

e x a m i n e d , y o u h a v e s i g n e d a n a ff i d a v i t t h a t s a y s , t h i s t r a n s c r i p t
correctly reflects your evidence.
A D V M L O T S H WA : A s t h e C h a i r p e r s o n p l e a s e s .
C H A I R P E R S O N : O k a y. J a .
ADV WILLIAM NICHOLSON: So Mr Mlotshwa if we can just briefly deal
with the – what has been termed the Cato Manor it has been dubbed
“The Hit – Cato Manor Hit Squad Prosecution”. If we can just deal with
that. What was your involvement in that matter?
A D V M L O T S H WA : I b e c a m e i n v o l v e d w h e n I f i r s t r e c e i v e d a c a l l f r o m
my Line Manager at the time Advocate Jiba informing me that there was

20

a matter that required my consideration.

My second involvement was

when myself and another fellow colleague the Head of the Division
Gauteng South with the Line Manager Advocate Jiba at the time met in
h e r o ff i c e a n d t h e n a s u g g e s t i o n w a s m a d e t h a t i n t h e l i g h t o f t h e f a c t
that I was the Head of the Province KZN and the case was emanating
from KwaZulu-Natal I will have to sign an indictment to array the

Page 9 of 77

27 FEBRUARY 2020 – DAY 220
accused in the matter in the High Court in KZN.
ADV

WILLIAM

NICHOLSON:

Was

a

prosecution

conducted

by

p r o s e c u t o r s f r o m y o u r o ff i c e ?
A D V M L O T S H WA :

No it was conducted by prosecutors from other

jurisdictions North West as well as Gauteng South.

If I am not

mistaken the Lead Prosecutor was from North West Advocate Maema
a n d t h e n t h e o t h e r M e m b e r s o f t h e Te a m w e r e f r o m G a u t e n g S o u t h .
CHAIRPERSON: Well ...(intervenes).
A D V M L O T S H WA : D P P o ff i c e .
10

ADV WILLIAM NICHOLSON:

Do you know why they were not

p r o s e c u t e d b y p r o s e c u t o r s f r o m y o u r o ff i c e ?
A D V M L O T S H WA :

At that time I was never given the reason except

t h a t f r o m t h e d i s c u s s i o n t h a t w e w o u l d h a v e h a d i n t h e o ff i c e o f m y L i n e
Manager I could gather that the view was not to involve prosecutors
from KZN as the possibility existed that the investigation may lead to a
possible charge of some of the advocates or prosecutors in my
decision. That is what I could glean from the discussion that we had in
her chambers.
ADV WILLIAM NICHOLSON: Were prosecutors from the KZN Province
20

ever prosecuted in this matter?
A D V M L O T S H WA : To d a t e n o .
A D V W I L L I A M N I C H O L S O N : O k a y. T h e r e w a s a l s o . . . ( i n t e r v e n e s ) .
CHAIRPERSON: Were there any allegations that were ever brought to
t h e i r a t t e n t i o n o r y o u r a t t e n t i o n r e l a t i n g t o a n y b o d y i n y o u r o ff i c e t h a t
related to the Cato Manor?

Page 10 of 77

27 FEBRUARY 2020 – DAY 220
A D V M L O T S H WA :

I am not sure if I understand the question

Chairperson.
CHAIRPERSON: Were you ever made aware or were any prosecutors
in KZN ever made aware of any allegations against them relating to the
Cato Manor matter?
A D V M L O T S H WA : N o t a t a l l C h a i r p e r s o n i t w a s j u s t . . . ( i n t e r v e n e s ) .
CHAIRPERSON:

So it is not just that they were not prosecuted but

nobody even ever came to them and said, you are implicated in this
way and that way in the Cato Manor matter?
10

A D V M L O T S H WA : To d a t e a s f a r a s I k n o w.
C H A I R P E R S O N : Ye s .
A D V M L O T S H WA : T h a t h a s n e v e r h a p p e n e d .
C H A I R P E R S O N : Ye s . O k a y.
ADV WILLIAM NICHOLSON: Now if we could just briefly deal with that.
If in the Province of KwaZulu-Natal if there is a prosecution that is
going to be connected against another prosecution how would that be
dealt with?
A D V M L O T S H WA : U n d e r n o r m a l c i r c u m s t a n c e s i f t h e m a t t e r i s a r i s i n g
out of a specific division prosecutors from that division are the ones

20

w h o a r e s u p p o s e d t o b e h a n d l i n g t h e p r o s e c u t i o n i n t h e m a t t e r.

But

there will be instances where there will be ground breaking exceptional
circumstances that warrant that a prosecutor from another division be
brought in to conduct a prosecution. A variety of reasons may exist for
that.
ADV WILLIAM NICHOLSON: The question that I am trying to get at did

Page 11 of 77

27 FEBRUARY 2020 – DAY 220
t h e P r o v i n c e o f K w a Z u l u - N a t a l a t t h e – a t t h a t s t a g e t h e D P P ’s o ff i c e
had the capacity to prosecute within its – from prosecutors within the
p r o v i n c e t o p r o s e c u t e a n o t h e r p r o s e c u t o r.
A D V M L O T S H WA :

In KZN particularly during my reign the province

KwaZulu-Natal was handling very huge prosecution projects some of
which

you

have

already

made

reference

to

in

your

bite

sized

introductory remarks.
A D V W I L L I A M N I C H O L S O N : O k a y. L e t m e a s k t h e q u e s t i o n t h i s w a y.
Was there any reason that you were informed of that would warrant the
10

p r o s e c u t o r s f r o m a d i ff e r e n t d i v i s i o n p r o s e c u t i n g t h e C a t o M a n o r
matter?
A D V M L O T S H WA : C h a i r n o e x c e p t t h a t i f o n e l o o k s a t t h e e - m a i l s t h a t
we made reference earlier on.
C H A I R P E R S O N : Yo u c a n r e f e r t o t h e e - m a i l s t o r e f r e s h y o u r m e m o r y.
A D V M L O T S H WA : T h e C h a i r p e r s o n w i t h . . . ( i n t e r v e n e s ) .
ADV WILLIAM NICHOLSON: The e-mails starts at page 7.
A D V M L O T S H WA :

Chair the e-mail that I focussing on will be an e-

mail that appears on page 9 of Exhibit RR6.
C H A I R P E R S O N : Ye s .
20

A D V M L O T S H WA :

If you look – if you cast a glance at that e-mail

towards the bottom of that e-mail there are – the last paragraph reads:
“I do not want to step on your toes. I was informed
that

you

National

agreed
Director

and
of

arranged
Public

with

the

acting

Prosecutions

for

somebody from outside to do the prosecution of this

Page 12 of 77

27 FEBRUARY 2020 – DAY 220
m a t t e r.

If you have now a change of heart please

indicate so that we may resolve it as soon as
possible.”
That was the first time this was brought to my attention that
somewhere somehow there was an allegation that I had made an
arrangement for somebody to be brought from outside.
ADV WILLIAM NICHOLSON: Did you in fact make this arrangements?
A D V M L O T S H WA : N o t a t a l l .
CHAIRPERSON: Were you ever asked by Ms Jiba or anybody to agree
10

that the Cato Manor matter be prosecuted by prosecutors from outside
KZN?
A D V M L O T S H WA : N o .
C H A I R P E R S O N : Yo u w e r e a s k e d f o r – t o a g r e e t o t h a t ?
A D V M L O T S H WA : N e v e r.
CHAIRPERSON:

So to the extent that the writer of that e-mail says

that this is what he was told namely that you had agreed that
prosecutors from outside KZN be the ones who would prosecute the
Cato Manor you are saying that is not true?
A D V M L O T S H WA : I s a w i t f i r s t t i m e .
20

C H A I R P E R S O N : Ye s .
A D V M L O T S H WA :

And it is a bit generic in the sense that it never

particularises the date, the place where this arrangement would
probably have been – it is just generic there was an arrangement.
CHAIRPERSON:

Ye s . B u t o f c o u r s e t h e r e m i g h t b e n o n e e d t o g i v e

those particulars until they – the writer knows whether you are

Page 13 of 77

27 FEBRUARY 2020 – DAY 220
disputing that you agreed. So if he was told that you had agreed and
have no reason to think that is not true he would not give those
particulars.

But if you said, no I do not know what you are talking

about I have never agreed to this you may say give me more
information and then maybe he would give you information or maybe he
w o u l d s a y, a c t u a l l y t h e p e r s o n w h o c a n g i v e i n f o r m a t i o n i s s o a n d s o
w h o i s t h e o n e t h a t t o l d m e . Yo u u n d e r s t a n d t h a t ?
A D V M L O T S H WA : I d o C h a i r.
CHAIRPERSON:
10

Ja.

But you are saying you never agreed to – you

never agreed that the prosecutors for the Cato Manor matter be from
outside KZN.
A D V M L O T S H WA : N o .
CHAIRPERSON: And you were never requested to agree?
A D V M L O T S H WA : N o .
C H A I R P E R S O N : Ye s . O k a y.
ADV WILLIAM NICHOLSON: Did you in fact – if we just deal with this
– w i t h t h a t e - m a i l . Yo u s a i d a n e - m a i l y o u w e r e d e a l i n g w i t h i s a t p a g e
9? Who was the e-mail from?
A D V M L O T S H WA :

20

The author will be the person appearing at the

bottom the Head of the Division Gauteng South fellow colleague
Advocate Andrew Chauke.
ADV WILLIAM NICHOLSON: And on what date was it sent?
A D V M L O T S H WA : I t i s d a t e d 1 2 J u n e 2 0 1 2 i n t h e a f t e r n o o n 1 7 : 1 4 .
ADV WILLIAM NICHOLSON: Did you in fact – did you reply to this email or in writing or telephonically?

Page 14 of 77

27 FEBRUARY 2020 – DAY 220
A D V M L O T S H WA :

Probably with the leave of the Chair to avoid

decontextualizing the e-mails.
C H A I R P E R S O N : Ye s .
A D V M L O T S H WA : I f o n e l o o k s a t p a g e 11 o f E x h i b i t R R 6 .
C H A I R P E R S O N : Ye s .
A D V M L O T S H WA : A s y o u l a y a n e y e o n t h a t e - m a i l y o u c a n s e e f r o m
Mamiki Suping so at the time that was a lady who was a personal
assistant to the Head of the Prosecution Gauteng. So that e-mail was
following hotly and hardly on the heels of the meeting I had with
10

Chauke and Advocate Jiba. A meeting where she had indicated to me
that I will have to sign an indictment as well as the provisional
delegation in the light of the fact that the prosecutors who were going
to handle prosecution were not from KZN.

So at that meeting my

response had been I never had a problem of signing an indictment
provided

the

indictment

was

going

to

be

accompanied

by

a

memorandum or a report. A report that would be detailing evidence –
that would be detailing evidence how it links each accused individually
and the accused as a collective. So as you can see there it was just an
indictment without a memorandum with – so as I received that e-mail it
20

was on the 12th of June 2012 at 13:29. As soon as I received it I made
a c a l l t o m y c o l l e a g u e t o s a y, t h e r e s e e m s t o b e a d e v i a t i o n f r o m t h e
agreement in terms of which when we left at our meeting we were all
consensus ad idem that I was going to receive both the indictment and
t h e m e m o r a n d u m . B u t i t s e e m s n o w I a m n o t s u r e i f i t i s t h e PA w h o
would have committed an error here by sending the indictment without

Page 15 of 77

27 FEBRUARY 2020 – DAY 220
the memorandum.

It is then that I started picking up during our

telephonic conversation that was not going to happen. Then I decided
to terminate the call and transmit another e-mail so that I could have a
record of what was happening. It is then that you will be able to see
the e-mail that appears on page 9 of Exhibit RR6 at the bottom there
you can see he sent that e-mail – the first e-mail is at 13:29 on 12 June
2012. Then the e-mail that I am sending to him at the bottom of page 9
from Cyril S Mlotshwa it bears the same subject.
C H A I R P E R S O N : Ye s .
10

A D V M L O T S H WA : T h e
“Dear Advocate Chauke our telephonic conversation
t o d a y t h e 1 s t k i n d l y f u r n i s h m e w i t h t h e p r o s e c u t o r ’s
memorandum

or

report

so

that

I

can

have

a

w r a p a r o u n d v i e w o f t h e m a t t e r. T h e r e p o r t m u s t a l s o
have the police station and case numbers so that we
c a n b e a b l e t o o p e n u p t h e D P P ’s f i l e . ”
In the normal scheme of things if the docket is forwarded to
t h e o ff i c e o f t h e D i r e c t o r o f P u b l i c P r o s e c u t i o n s t h e r e o u g h t t o b e a f i l e
opened there. And then that file will contain the docket and everything
20

t h a t r e l a t e s t o t h a t m a t t e r. S o y o u c a n s e e w h e n y o u l o o k a t t h i s e - m a i l
c l o s e l y t h a t t h e o ff i c e o f t h e D i r e c t o r o f P u b l i c P r o s e c u t i o n s K w a Z u l u N a t a l d i d n o t h a v e a n y t h i n g i n r e l a t i o n t o t h i s m a t t e r.

It was my

e l o q u e n t a n d c o n s c i o u s e ff o r t t o g e t s o m e i n f o r m a t i o n s o t h a t w e c o u l d
a l s o o p e n u p t h e f i l e a t o u r o ff i c e . S o i t i s t h e n t h a t y o u c a n s e e t h e
debate getting heated. A reply to my e-mail at 13:21 on the same page,

Page 16 of 77

27 FEBRUARY 2020 – DAY 220
on page 9.
C H A I R P E R S O N : Ye s .
A D V M L O T S H WA : A t 1 7 : 1 4 f r o m m y c o l l e a g u e .
C H A I R P E R S O N : Ye s I t h i n k y o u c a n r e a d t h a t e - m a i l .
A D V M L O T S H WA : Ye s . T h e e - m a i l r e a d s :
“Dear Advocate Mlotshwa who is the prosecutor that
you are referring to?

I have forwarded to you the

indictment which has all the detailed summary by
which you ought to be in a position to open up your
10

f i l e – y o u r o ff i c e f i l e . I a l s o f o r w a r d e d t o y o u d e t a i l s
of the inquest with police case numbers etcetera to
which you referred to Advocate Thoke Mjokweni.”
For the record Thoke Mjokweni at the time was the acting
P r o s e c u t i o n S e r v i c e s D i r e c t o r a t N a t i o n a l o ff i c e .
“For reasons that I do not follow and I understand
the indictment with respect gives you the whole view
o f t h e m a t t e r. Yo u a r e k i n d l y a n d f e r v e n t l y r e q u e s t e d
to please discuss any issues if any with me. I really
do not see any need for me to give you any report

20

o t h e r t h a n w h a t I h a v e f o r w a r d e d t o y o u a l r e a d y.
Please if I misunderstand you make me understand.
I do not want to play you or undermine your
j u r i s d i c t i o n a l a u t h o r i t y i n a n y w a y w h a t s o e v e r. T h e r e
are serious issues of security in this matter which if
necessary you will be briefed about which are not

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27 FEBRUARY 2020 – DAY 220
relevant to you and I cannot expose such to you at
this stage. I have also learnt with utter dismay that
you have now issued an instruction to the senior
prosecutors that all dockets that are with us must be
brought to you. What is happening here my brother?
Please if you have any issue again talk to me or
arrange that we see the acting National Director of
P u b l i c P r o s e c u t i o n s u r g e n t l y. ”
CHAIRPERSON:
10

And I think it says what is not happening here my

b r o t h e r.
A D V M L O T S H WA : Ye s .
CHAIRPERSON:

I do not know whether he meant what is happening

here my brother but what is written is what is not happening here my
b r o t h e r.

I am mentioning that because I think you read what is

happening here my brother whereas it is written what is not happening
h e r e m y b r o t h e r. T h a t i s t h e o n l y r e a s o n w h y I a m m e n t i o n i n g i t .
A D V M L O T S H WA : A s t h e C h a i r p e r s o n p l e a s e s .
C H A I R P E R S O N : Ye s .
A D V M L O T S H WA :
20

“Another issue of concern to me is the

delay in your issuing the instruction of the reopening
of the inquest in view of the fact that you have been
requested to sign the indictment which must be
preceded by your decision to reopen the inquest. If
this makes you uncomfortable please indicate so that
I may urgently take the matter up with the acting and

Page 18 of 77

27 FEBRUARY 2020 – DAY 220
D P P a s w e l l a s t h e M i n i s t e r. ”
That was a bit confusing because if one looks at the lines of
reporting within the National Prosecuting Authority I am not sure
because I am not …(indistinct) in the system the DPP reports to the
acting and DPP and its – the NDPP in terms of the legislation who
s h o u l d r e p o r t t o t h e M i n i s t e r. S o h e r e s e e m s t o b e s u g g e s t i v e t h a t h e
has to report to both.
“I do not want to step on your toes I was informed
that you agreed and arranged with the NDPP for
10

somebody from outside to do the prosecution of this
m a t t e r.

If you have now a change of heart please

indicate

so

that I may

resolve

it as

soon

as

possible.”
Chairperson it is something that I brought to the attention
...(intervenes).
CHAIRPERSON:

And it is from Mr Andrew Chauke Director of Public

Prosecutions South Gauteng High Court?
A D V M L O T S H WA : T h a t i s t h e p o s i t i o n .
C H A I R P E R S O N : Ye s .
20

A D V M L O T S H WA : A g a i n i f y o u g o b a c k o n p a g e 8 t h a t i s m y r e s p o n s e
to his e-mail. So which means in the afternoon after sending an e-mail
t o h i m I l e f t t h e o ff i c e l a t e .

Upon opening up my e-mails on the

following day 13 June 2012 at 09:12. That is the e-mail I decide – it is
then that read that e-mail and I decided to respond.
C H A I R P E R S O N : Ye s .

Page 19 of 77

27 FEBRUARY 2020 – DAY 220
A D V M L O T S H WA :

Regrettably Chair that e-mail is incomplete in my

response to him. As you can see I am saying to him:
“Dear Advocate Chauke, I operate from the premise
t h a t t h e m i s s i o n o f t h e N PA e n j o i n s u s t o b e g u i d e d
by the Constitution. The last time I cast a glance at
the Constitution I gleaned that it is its preamble
encapsulate that all the rights enshrined in the
Constitution have to be respected, protected and
promoted. This includes the right to human dignity
10

w h i c h i s a ff i r m e d b y S e c t i o n 1 0 o f t h e s a m e
Constitution. I think it is significant that I alert you
or I bring it to your consciousness that as a South
African citizen that this Constitution also renders
me a cast iron guarantee to this right. I am acutely
aware

that as

we

live

in

a

fast paced

s t i m u l a t e d a n d I w a n t i t q u i c k s o c i e t y.

over

There is

always a temptation to arrive at a decision that is
based on preconceived ideas.

Argumentum ad

hominem principle is a well-established principle of
20

l a w.

The caveat is that we should guard against

emotions when we engage or interact with each
o t h e r.

If your memory services you well you will

recall how you threw tantrums at me when you
c o n t a c t e d m e o n e m o r n i n g l a s t m o n t h . Yo u l e v e l l e d
s e r i o u s a l l e g a t i o n s a g a i n s t m e . Yo u d i d n o t r e p e a t

Page 20 of 77

27 FEBRUARY 2020 – DAY 220
the same allegations when we met the NDPP in
t h e i r o ff i c e .
through.

I maintained my cool through and

The impression I derived from your

behaviour is that you nourish a lavish mentality that
you are the only one so fortunate ...”
My apologies.

It seems there I was also emotional in that

response and then paragraph 3:
“(Indistinct) that we do not see things as they are,
but we see things as we are. Hence it is imperative
that we make a conclusion that is based on facts,

10

factors and circumstances.
question to me.
discuss?

Yo u a r e p o s i n g a

Do I have issues that we must

So premier significant is the fact that

Butler holds the view that words are nothing, but
just the clothes that the thoughts were.

In 1974

L E Hefner (?)postulated that a skilful reader reads
between the lines and reads beyond the lines.
W a t e r m e y e r, J H s t a t e d i n R v s B l o m 1 9 8 9 A D t h a t :
when we draw inference the inference that we seek
to draw must be from the facts.”

20

So two pages are missing to that e-mail.
CHAIRPERSON: Oh.
A D V M L O T S H WA : S o . . . ( i n t e r v e n e s ) .
CHAIRPERSON:

That is quite a lot.

Why are those two pages not

there?

Page 21 of 77

27 FEBRUARY 2020 – DAY 220
A D V W I L L I A M N I C H O L S O N : C h a i r, w e – t h e s e e - m a i l s c o m e f r o m t h e
information that was provided to us on a hard drive by the Mokgoro
I n q u i r y.

Only until consulting with Advocate Mlotshwa did we realise

that these two pages are missing.

We are going to endeavour to

...(intervenes).
CHAIRPERSON:

Why was that not seen much earlier?

H i s a ff i d a v i t

w a s d e p o s e d t o i n D e c e m b e r.
ADV WILLIAM NICHOLSON:

C h a i r, i t j u s t w a s n o t b r o u g h t t o o u r

attention that there was anything missing, because ...(intervenes).
10

CHAIRPERSON: Who was going to bring it to your attention, because
he was going to give evidence in December is it not or was it
November?
A D V W I L L I A M N I C H O L S O N : I n J a n u a r y.
CHAIRPERSON:

Well we had the other session when was it when

Mr Ngidi – is it Ngidi or Manyathi testified? When was that?
A D V W I L L I A M N I C H O L S O N : I t w a s i n J a n u a r y C h a i r.
CHAIRPERSON: Was it in January?
ADV WILLIAM NICHOLSON: That is correct.
CHAIRPERSON:
20

Oh.

O k a y, b u t b y t h e n t h e r e w o u l d – w h a t

Mr Mlotshwa was going to give evidence should have been perused and
to see if everything was fine. I cannot see why that was not picked up
m u c h e a r l i e r.
ADV WILLIAM NICHOLSON: Chair ...(intervenes).
CHAIRPERSON: Both by the investigators, but more importantly by the
L e g a l Te a m .

Page 22 of 77

27 FEBRUARY 2020 – DAY 220
ADV WILLIAM NICHOLSON:

I n d e e d C h a i r.

b e e n p i c k e d u p m u c h e a r l i e r.

C h a i r, i t o u g h t t o h a v e

The only reason I can think of is that

Mr Mlotshwa was removed in January and therefore the file was not
perused for the January hearing.
C H A I R P E R S O N : Ye s , b u t w h o a r e r e s p o n s i b l e t o m a k e s u r e e v e r y t h i n g
is ready?

I t i s t h e L e g a l Te a m , b e c a u s e t h e y a r e t h e o n e s w h o m u s t

l e a d e v i d e n c e . I f t h e r e i s a n y t h i n g t h a t i s n o t r e a d y. T h e y a r e t h e o n e s
who must be able to pick it up if the investigators have not picked it up
before it comes here.
10

A D V W I L L I A M N I C H O L S O N : I n d e e d C h a i r.
CHAIRPERSON: Because how much value can I put on an incomplete
e-mail ...(intervenes).
ADV WILLIAM NICHOLSON: Chair ...(intervenes).
CHAIRPERSON: Because I do not know what was said in the second
page. I do not what was said in the second page. I do not know what
was in the third page. I do not know if it negates everything that was
said in the first page.
ADV WILLIAM NICHOLSON:

Indeed

C h a i r.

C h a i r,

what

I

will

endeavour to do is to ensure that those e-mails are obtained and
20

p e r h a p s a s u p p l e m e n t a r y a ff i d a v i t i s o b t a i n e d f o r t h e p u r p o s e s o f t h e
C h a i r, b u t p e r h a p s t h i s w i t n e s s c o u l d t e s t i f y i f h e h a s m e m o r y o f w h a t
was in the e-mail.
C H A I R P E R S O N : I t i s u n s a t i s f a c t o r y. T h e L e g a l Te a m s h o u l d l o n g h a v e
picked up if there were – there was an e-mail that was not complete.
T h a t s h o u l d h a v e a t t e n d e d t o . To o b t a i n w h a t e v e r p a g e s w e r e m i s s i n g

Page 23 of 77

27 FEBRUARY 2020 – DAY 220
and if the position was that those missing pages could not be found.
T h e L e g a l Te a m s h o u l d h a v e t a k e n a d e c i s i o n w h e t h e r t h e r e w a s a n y
value in presenting an incomplete e-mail.
I do not know whether it would be fair to the witness to ask
him to try and remember what the two pages that he wrote in 2012 said.
If – unless he has got the complete e-mail and he has had a look at it
r e c e n t l y. M r M l o t s h w a , d o y o u h a v e a c o m p l e t e e - m a i l ?
A D V M L O T S H WA : C h a i r, a s t h e i n c i d e n t h a p p e n e d i n 2 0 1 2 . I h a n d e d
t h e s e e - m a i l s t o t h e i n v e s t i g a t i o n Te a m i n 2 0 1 5 a n d I l e f t t h e s y s t e m .
10

CHAIRPERSON:

T h a t i s t h e I n v e s t i g a t i o n Te a m o f t h e C a t o M a n o r

matter?
A D V M L O T S H WA : B o t h Te a m s . T h e S A P S , t h e C o m m i s s i o n e r o f O a t h .
I think it is Lieutenant Howa who appears there at the bottom of the email that I deposed to. I gave him those e-mails. I also gave those em a i l s t o t h e E v i d e n c e L e a d e r s i n t h e M o k g o r o C o m m i s s i o n o f I n q u i r y.
CHAIRPERSON: So as of last year when you testified at the Mokgoro
Inquiry ...(intervenes).
A D V M L O T S H WA : T h e y w e r e c o m p l e t e .
CHAIRPERSON: This e-mail was complete?
20

A D V M L O T S H WA : T h a t i s t h e p o s i t i o n .
C H A I R P E R S O N : Ye s .
A D V M L O T S H WA : T h a t i s w h y w h e n r e a d i n g t h e e - m a i l s r e a l i s i n g t h a t
they were incomplete.

The impression I got was that probably when

making the copies someone might have erred and not printed out the –
so that is the impression I immediately got when ...(intervenes).

Page 24 of 77

27 FEBRUARY 2020 – DAY 220
CHAIRPERSON:

Ye s , b u t t h e L e g a l Te a m s h o u l d h a v e p i c k e d t h a t a

long time ago. That is my concern that the witness is giving evidence
and the – he is referred to an e-mail that is incomplete.

I have not

been told in advance that there is an incomplete e-mail here.
A D V W I L L I A M N I C H O L S O N : I n d e e d C h a i r.
CHAIRPERSON:

I d o n o t u n d e r s t a n d w h y t h e L e g a l Te a m s h o u l d n o t

have picked that up much earlier and made sure that it was sorted out.
ADV WILLIAM NICHOLSON:

C h a i r, t h e o n l y e x p l a n a t i o n I c a n g i v e i s

that as I have said perhaps we can endeavour to find it and do a
10

s u p p l e m e n t a r y a ff i d a v i t .
CHAIRPERSON:

Ye s .

Of course you are appreciated that is not an

explanation. That is what you will do to try and control damage, but I
r e a l l y d o n o t u n d e r s t a n d w h y. L e t u s c o n t i n u e w i t h t h e w i t n e s s a n d t r y
and let him cover the important things and then you can do what needs
to be done to rectify this.
A D V W I L L I A M N I C H O L S O N : I a m i n d e b t e d C h a i r. A r e y o u a b l e t o s a y
what the rest of the e-mail contained?
A D V M L O T S H WA : T h e s i g n i f i c a n t p a r t i n t h e o u t s t a n d i n g p a g e s i s t h a t
I had agreed with the colleague to go and see the Acting Judge
20

President in the division.

He is currently the Judge President

Judge Chabi, because in – if prosecutors from outside were coming to
the division.

It was more appropriate for me to introduce him to the

Judge. He did not do that.
So I had raised that in the outstanding pages that that was
also my embedded concern. That look that was not honoured. So the

Page 25 of 77

27 FEBRUARY 2020 – DAY 220
response will be the e-mail 30 June 2012 on page 8 I think he authored
that

e-mail

at

10:32

copying

in

Jiba

as

well

as

Advocate Sithole Majokweni. In that e-mail he said:
“Dear

Advocate Mlotshwa

I

have

noted

your

c o n c e r n s b e l o w. I a p o l o g i s e t o t h e e x t e n t t h a t y o u
feel I am not respecting you and my communication
to you was not what you expected. I also apologise
for having not told you that I could not travel to
KZN due to unforeseen circumstances. I hope this
meets your approval and I have learnt my lesson in

10

this regard.”
I accepted his apology and then he also gave me another email on page 12, because he had also indicted that the inquest must be
reopened. So him saying that that e-mail is also withdrawn according
to the e-mail on page 12.
CHAIRPERSON: Let us go back to the practice or system used before
a prosecutor from another province can be brought in to prosecute in a
matter that is in another province. Is there a policy on this? Is there are there prescripts that you are aware of that need to be followed?
20

Was there a practice as to how – when that happens and how it is
done?
A D V M L O T S H WA : C h a i r t h a t i s w h y i t w a s a p r o b l e m w h e n w e m e t i n
t h e o ff i c e o f t h e t h e n A c t i n g D i r e c t o r o f P u b l i c P r o s e c u t i o n s , b e c a u s e
what she said to me were two things during that very brief meeting.
That one, you will have to sign the …(indistinct) and then two, you will

Page 26 of 77

27 FEBRUARY 2020 – DAY 220
have to sign the provisional delegations for those prosecutors and then
at that point she indicated to me it is a legal opinion she had procured
from legal services.
She particularised the person from whom she got a legal
opinion.

Advocate Gerhard Nel.

I understand he also testified in the

Mokgoro Commission whether or not he ever administered that opinion.
That being a legal conundrum in the sense that if a Deputy Director is
appointed by the Minister is appointed for a specific division and if one
l o o k s m e t i c u l o u s l y a t t h e m e m b e r s o f t h e Te a m t h a t w e r e f o r m i n g p a r t
10

o f t h i s Te a m t h a t w a s s e n t t o K Z N .
The Lead Prosecutor was Advocate Maema from North West
D P P O ff i c e . H e w a s a D e p u t y D P P a n d s t i l l i s a D e p u t y D P P i n N o r t h
West and appointment specifying as such.

So if he goes to lead

prosecution in KZN it was going to create a problem.

I think another

advocate – Advocate Mathenjwa – Ray Mathenjwa – he was also a
D e p u t y D P P i n t h e o ff i c e o f t h e D P P G a u t e n g S o u t h .

Appointed

specifically for Gauteng South.
For him to go and prosecute in KZN that was going to be an
issue and then with the other members.
20

A d v o c a t e Ya n n i M l o t s h w a .

Mlotshwa is a Senior Advocate. Though not appointed by the Minister
for – specifically for Gauteng South, but his delegation to execute
prosecutorial decisions.

That delegation would have been assigned –

would have been signed by the Head of the Division my colleague,
Advocate Chauke.
So it is against that background that my Line Manager at the

Page 27 of 77

27 FEBRUARY 2020 – DAY 220
time of Jiba indicated that in terms of the legal opinion that she had
procured.

I could sign the indictment.

I could sign the provisional

delegation pending the research and investigation whether or not they
can be assigned permanently in that project.

So unfortunately I was

recalled in 2012. I am not sure, because they are still involved – if the
case is still in court as to what is the status of their delegation in the
m a t t e r.
CHAIRPERSON: But that is what happened in the specific case.
A D V M L O T S H WA : Ye s .
10

CHAIRPERSON:

I am asking about the general practice or a policy

whether when you were Acting DPP in KZN you were aware of what
p o l i c i e s e x i t w i t h i n t h e N PA o r w h a t p r e s c r i p t s – l e g a l p r e s c r i p t s e x i t e d
that dealt with or governed the situation where a prosecutor will be
taken from one province to go and prosecute in another province.
A D V M L O T S H WA : N o n e t h a t I k n o w o f .
C H A I R P E R S O N : Ye s .
A D V M L O T S H WA : Ye s .
CHAIRPERSON:

Do you have any recollection whether the National

Prosecuting Authority Act says anything about such things?
20

A D V M L O T S H WA : A s f a r a s I r e m e m b e r t h e r e w a s n o t h i n g i n t h e A c t .
Except that because of the nature of budget if a prosecutor from – if
the DPP requests assistance.

We request assistance from the NDPP

and then the NDPP will get assistance from a specific DPP who has to
dispatch the prosecutor to go and assist.
budget will be discussed.

Page 28 of 77

It is then that the issue of

27 FEBRUARY 2020 – DAY 220
Tr a v e l l i n g a r r a n g e m e n t s a n d s o o n a n d s o f o r t h a s t o w h i c h
o ff i c e w i l l h a v e t o p i c k u p t h e t a b – t o p a y t h e b i l l . S o i n t h i s o n e I w a s
not involved even with the arrangements, accommodation, travelling. I
do not know what was – what happened.
CHAIRPERSON: But is your answer that as far as you know or rather
that you are not aware of any provision in the National Prosecuting
Authority Act that specifically deals with getting a prosecutor from one
province to go and prosecute in another province?
A D V M L O T S H WA : T h a t i s a ff i r m a t i v e C h a i r.
10

CHAIRPERSON:

And you are not aware that there were any written

policies on this?
A D V M L O T S H WA : N o n e t h a t I r e c a l l .
CHAIRPERSON:

Are you aware of – were you aware of any practice

that may have been followed over the years?
A D V M L O T S H WA : A s I h a v e i n d i c a t e d C h a i r . . . ( i n t e r v e n e s ) .
CHAIRPERSON: H’mm.
A D V M L O T S H WA :
considerations

That it will be the DPP because of some certain

feeling

that

look

another

division

must

send

a

p r o s e c u t o r, b u t t h a t r e q u i r e – r e q u e s t w i l l h a v e t o g o v i a – t h e N D P P
20

will make a determination from which division a request can be made to
get a prosecutor to go and prosecute in that division.
CHAIRPERSON:

So your understanding is that indeed there was a

practice?
A D V M L O T S H WA : Ye s . Ye s .
CHAIRPERSON: And are you saying the practice was that the request

Page 29 of 77

27 FEBRUARY 2020 – DAY 220
had to come from the DPP of the province concerned where the
prosecution was to take place?
A D V M L O T S H WA : T h a t i s t h e p o s i t i o n .
CHAIRPERSON: And that request would be directed to the NDPP?
A D V M L O T S H WA :

Who will make a determination among the other

divisions that are there ...(intervenes).
C H A I R P E R S O N : Ye s . Ye s .
A D V M L O T S H WA : W h e r e h e o r s h e a p p r o a c h e s . . . ( i n t e r v e n e s ) .
C H A I R P E R S O N : Ye s .
10

A D V M L O T S H WA : To g e t a s s i s t a n c e .
CHAIRPERSON: Well it ought to be possible to have a situation where
a prosecutor comes from another province, because there could be a
situation where a sitting DPP has to be prosecuted and maybe it might
be awkward to have one of his or her subordinates prosecuting him. So
it ought to be possible to bring in somebody from another province, but
you say the only practice you knew is that the DPP would have to make
t h e r e q u e s t t o t h e N D P P.
A D V M L O T S H WA : I c o n c u r C h a i r.
C H A I R P E R S O N : Ye s .

20

A D V M L O T S H WA :

That that was always possible during my time

...(intervenes).
C H A I R P E R S O N : Ye s .
A D V M L O T S H WA :

To

have

somebody

from

another

division

to

prosecute in another ...(intervenes).
CHAIRPERSON:

Ye s , b u t i n r e g a r d t o t h i s p a r t i c u l a r m a t t e r o f C a t o

Page 30 of 77

27 FEBRUARY 2020 – DAY 220
Manor how did it come about that a matter that related to KZN where
you were Acting DPP suddenly got attended to in Gauteng without your
knowledge, because that is what I understand, but you can tell me if I
misunderstand something.
I get the impression that when you were approached by the
A c t i n g N D P P a n d t o l d a b o u t t h e C a t o M a n o r m a t t e r.

Yo u r o ff i c e a s

acting DPP in KZN had not been involved in any – in that matter at all
at that stage or do I misunderstand something?
A D V M L O T S H WA : C h a i r, I t h i n k t h a t i s t h e a s p e c t t h a t I a l s o f o u n d a
10

bit odd, because in respect of the e-mails that I made reference to. I
indicated that we did not have even the case numbers, the police
stations from which those cases would be coming from. Except just the
indictment. So as we all know that the parties will be.
No matter can be enrolled in the High Court – a criminal
matter in the High Court without the DPP file existing and it is on that
basis that once the DPP file has been captured/obtained then there will
b e a n o t h e r f i l e i n t h e R e g i s t r a r ’s O ff i c e o n t h e i r p a r t w h i c h w i l l
e v e n t u a l l y b e c o m e t h e J u d g e ’s f i l e .

So with this one I did not have

anything from the day I first became aware of the matter until I was
20

recalled.
CHAIRPERSON:

So as I understand your evidence before the inquiry

chaired by Justice Mokgoro.

Yo u g o t a c a l l f r o m A d v o c a t e J i b a w h e n

you were on a trip to Port Shepstone and that is when you heard for the
first time that there was prosecution that was being contemplated
r e l a t i n g t o t h e C a t o M a n o r m a t t e r.

Page 31 of 77

27 FEBRUARY 2020 – DAY 220
A D V M L O T S H WA : T h a t i s . . . ( i n t e r v e n e s ) .
CHAIRPERSON: That is correct?
A D V M L O T S H WA : T h a t i s c o r r e c t C h a i r.
C H A I R P E R S O N : Ye s .
A D V M L O T S H WA : C h a i r.
CHAIRPERSON:

A s a t t h a t t i m e y o u d i d n o t – y o u r o ff i c e w a s n o t

involved in – as far as you know no prosecutor was involved in any
...(intervenes).
A D V M L O T S H WA : D u r i n g . . . ( i n t e r v e n e s ) .
10

CHAIRPERSON: Such matter?
A D V M L O T S H WA :

During that telephonic conversation no indication

was made as to who were the accused. As to where in KwaZulu-Natal
was the matter emanating from. Even the date of possible commission
o f t h e o ff e n c e s . I w a s n o t g i v e n t h e i n f o r m a t i o n . A s f a r a s I r e m e m b e r
her call had to be terminated, because she indicated that she was at
t h e a i r p o r t a t t h e t i m e a n d w a s g o i n g t o c a l l m e l a t e r.
T h e n I d i d n o t r e c e i v e a c a ll f r o m h e r.

Up until one of the

days when I was the Chair of the meeting of the Managers in KZN. The
Chief Prosecutors and the Deputy Directors of Public Prosecutions. Me
20

h a v i n g f o r g o t t e n t o s w i t c h o ff m y p h o n e . I t r a n g . A s I e x c u s e d m y s e l f
from chairing the meeting seeing who the caller was. It is then that my
colleague indicated that he had been instructed to dispatch a team,
t h a t i s A d v o c a t e C h a u k e , t o d i s p a t c h a Te a m o f p r o s e c u t o r s t o K Z N ,
because I had to go back to the meeting.
My reply to him was we were going to discuss the matter

Page 32 of 77

27 FEBRUARY 2020 – DAY 220
f u r t h e r a n d t h o r o u g h l y w h e n w e m e e t a g a i n a t t h e D P P ’s m e e t i n g a n d
i n d e e d t h e r e w e r e – t h e r e w a s a m e e t i n g a t N a t i o n a l O ff i c e w h i c h t o o k
three days.

First day it was chaired by Advocate Jiba if I am not

mistaken and then the second day it was discussing the performance
a s s e s s m e n t o f t h e p r o s e c u t o r s i n t h e c o u n t r y.
I t h i n k a t t h a t m e e t i n g i t w a s a m e e t i n g o f t h e D P P ’s o n l y a n d
Advocate Jiba was in her chambers.

So while that meeting was in

progress it is then that my colleague, Advocate Chauke, stood up,
touched me on my shoulder and said let us go and meet Advocate Jiba
10

in her chambers.
I l e f t t h e D P P ’s m e e t i n g f o l l o w i n g h i m i n t o A d v o c a t e J i b a ’s
o ff i c e a n d i n d e e d u p o n e n t e r i n g h e r o ff i c e w e e x c h a n g e d g r e e t i n g s a n d
then Chauke indicating that look we cannot discuss much about this
case, because there are serious security concerns and the possibility
that other prosecutors or advocates in KZN may also be possibly linked
and then the Line Manager Advocate Jiba responded that Simphiwe by
the way I have got a legal opinion in terms of which you will have to
sign the indictment as the Head of the Province KwaZulu-Natal and
then also sign the provisional delegation for them – the team to have a

20

delegation to hand the prosecution in the province and reply to that
was very short in that.
I will do that provided in respect of the indictment it will be
accompanied by the report and the memo that will help me to have a
h e l i c o p t e r v i e w o f w h a t i s h a p p e n i n g i n t h e m a t t e r. A s I d o n o t h a v e
any information at that stage.

Page 33 of 77

27 FEBRUARY 2020 – DAY 220
CHAIRPERSON:

Just as maybe an aside.

Actually in order to be

comfortable in signing an indictment would the position not be that not
only

would

you

need

a

p r o s e c u t o r ’s

memo

I

think

as

the

correspondence seems to refer to it, but you – would you not also need
to see the statements of witnesses and so on or would you be able to
sign an indictment without seeing the statements of witnesses?
A D V M L O T S H WA :

C h a i r, a s y o u s a w i n t h e e - m a i l s t h a t I m a d e

reference to that we did not have any file in existence. At that time I
was so desperate to get something so that I could be able to issue an
10

i n s t r u c t i o n i n m y o ff i c e t h a t a n – a d o c k e t – a f i l e f o r t h i s m a t t e r b e
opened.

It was against that background that at least if I got an

indictment as well as the memo or the memorandum.
With those two documents we will be able to open up the file
i n t h e D P P ’s O ff i c e , b e c a u s e o b v i o u s l y t h e m e m o o r t h e r e p o r t w i l l
indicate the police station where the matter or the matters were coming
f r o m , c a s e n u m b e r s , t h e i n v e s t i g a t i n g o ff i c e r s a n d t h e n d e t a i l w h a t
evidence each witness is saying and the form of evidence contained in
the docket whether it is documental, eyewitnesses and so on and so
forth and for me as well, because if – as the Head of the Division
20

though I cannot tamper with the decision to prosecute, but I had also to
b e s a t i s f i e d t h a t e v i d e n c e e x i s t e d t o j u s t i f y t h e e n r o l m e n t i n t h e m a t t e r.
C H A I R P E R S O N : Ye s , b u t a m I r i g h t i n t h i n k i n g t h a t y o u w o u l d n o t b e
comfortable or any DPP should not be comfortable signing the
indictment without having seen the actual evidence or statements? Am
I correct in that or is the position that provided you have – you are

Page 34 of 77

27 FEBRUARY 2020 – DAY 220
satisfied on the basis of a memo from another prosecutor who has
looked at the evidence and in his or her memo he or she details what
the evidence is.
Yo u m a y b e j u s t i f i e d i n s i g n i n g t h e i n d i c t m e n t e v e n i f y o u
yourself have not actually seen the statements or the evidence.
A D V M L O T S H WA : C h a i r, u n f o r t u n a t e l y t h e o u t s t a n d i n g p a g e s o f t h e e mail will also explain that ...(intervenes).
C H A I R P E R S O N : Ye s .
A D V M L O T S H WA : B e c a u s e i f y o u s e e t h e e - m a i l t o m e a s k i n g m e w h o
10

are you talking about?

What report are you talking about?

It is then

that I try to give an account to him in respect of the report or the memo
saying; it is the practice in the NPP – it was the practice then. I do
n o t k n o w c u r r e n t l y.

For instance if the National Director of Public

Prosecutions had to issue a certificate for people to be charged with
racketeering with this new – racketeering/money laundering.
I will make an example.

With the projects that I had the

Amigos case and other projects were there would be racketeering
charges.

More often than not a practice will be a memo will be

submitted without the copies of dockets themselves. So the memo will
20

be so detailed to such an extent that they put one in a tense and
uncomfortable space to make a determination as to what is it that is
h a p p e n i n g i n t h e m a t t e r.
For the NDPP to have confidence to append a signature on
the

certificate.

That

is

how

I

appeared

...(intervenes).

Page 35 of 77

to

be

understanding

27 FEBRUARY 2020 – DAY 220
C H A I R P E R S O N : Ye s .
A D V M L O T S H WA :
documents

the

The situation at the time.

indictment

accompanied

by

That with those two
the

memo

with

that

information I could be in a position to sign the indictment with ease.
C H A I R P E R S O N : S o i f t h e p r o s e c u t o r ’s m e m o i s s u ff i c i e n t d e t a i l e d t h a t
could lead you to being comfortable to sign the indictment even though
you have not seen the witness statements as such, but if it is not
s u ff i c i e n t l y d e t a i l e d y o u m i g h t t h e n w i s h t o s e e m o r e – t o s e e t h e
witness statements?
10

A D V M L O T S H WA :

U n d e r n o r m a l c i r c u m s t a n c e s C h a i r, i t i s s u ff i c i e n t ,

b e c a u s e a s l a w y e r s w i l l k n o w. I n t h e m e m o y o u w i l l s e e w h a t f a c t s w i l l
they – will be alleged. What facts will be proved? What facts will be
disputed? The anticipation of the defence by the accused.
C H A I R P E R S O N : Ye s .
A D V M L O T S H WA :

What facts will possibly be agreed on when the

matter goes ...(intervenes).
C H A I R P E R S O N : Ye s .
A D V M L O T S H WA : To c o u r t . . . ( i n t e r v e n e s ) .
C H A I R P E R S O N : Ye s .
20

A D V M L O T S H WA : A n d t h e n w e w i l l f u r t h e r i n d i c a t e t h e o r a l e v i d e n c e
...(intervenes).
C H A I R P E R S O N : Ye s .
A D V M L O T S H WA :

Documentary

evidence

...(intervenes).
CHAIRPERSON: Ja.

Page 36 of 77

and

the

shortcomings

27 FEBRUARY 2020 – DAY 220
A D V M L O T S H WA : I f a n y.
CHAIRPERSON: Ja.
A D V M L O T S H WA :

For

instance

the

witness.

It was

at night

...(intervenes).
C H A I R P E R S O N : Ye s . J a .
A D V M L O T S H WA : A n d s o o n a n d s o f o r t h .
CHAIRPERSON: Ja.
A D V M L O T S H WA : I t i s s o d e t a i l e d .
C H A I R P E R S O N : S o u s u a l l y i t i s s u ff i c i e n t l y d e t a i l e d ?
10

A D V M L O T S H WA : T h a t i s t h e p o s i t i o n .
C H A I R P E R S O N : Ye s . O k a y . . . ( i n t e r v e n e s ) .
A D V M L O T S H WA : C h a i r.
CHAIRPERSON: But here you were being asked to sign an indictment
a n d t h e r e w a s n o s u c h p r o s e c u t o r ’s m e m o ?
A D V M L O T S H WA : T h a t w a s t h e p o s i t i o n .
C H A I R P E R S O N : A n d y o u h a d d i ff i c u l t y w i t h t h a t ?
A D V M L O T S H WA : I h a d d i ff i c u l t y w i t h t h a t t o s u c h a n e x t e n t t h a t t h e
w a y I w a s v i e w i n g t h e d i ff i c u l t y I r e f u s e d t o s i g n t h e i n d i c t m e n t u n t i l I
was recalled.

20

CHAIRPERSON:

Ye s .

So by the time you were recalled or asked to

s t e p d o w n a s A c t i n g D P P. T h a t i s s u e h a d n o t b e e n r e s o l v e d . N a m e l y
whether the signing of the indictment, because you were saying I need
t h e p r o s e c u t o r ’s m e m o a n d M r C h a u k e a n d w h o e v e r e l s e w e r e n o t
providing that memo and Mr Chauke was saying that having the
i n d i c t m e n t b e f o r e y o u i s s u ff i c i e n t . I s t h a t c o r r e c t ?

Page 37 of 77

27 FEBRUARY 2020 – DAY 220
A D V M L O T S H WA : T h a t i s c o r r e c t .
C H A I R P E R S O N : Ye s . W h a t d o y o u m a k e o f M r C h a u k e ’s s t a n c e ?
A D V M L O T S H WA : H ’ m m .
CHAIRPERSON:

He was the DPP for South Gauteng himself.

So he

was in – except that he was not acting and you were acting, but you
were on the same level.

Yo u w e r e A c t i n g D P P f o r K Z N .

He was for

DPP for South Gauteng. What did you make of his stance that there is
n o r e a s o n f o r y o u t o w a n t a p r o s e c u t o r ’s m e m o ?
A D V M L O T S H WA : C h a i r t h a t i s t h e r e a s o n I d r a w y o u r a t t e n t i o n t o t h e
10

last sentence above paragraph 3 of my e-mail.
C H A I R P E R S O N : Ye s .
A D V M L O T S H WA : O n p a g e 8 .
C H A I R P E R S O N : Ye s .
A D V M L O T S H WA : Yo u c a n s e e t h e t o n e t h e r e w h e n I w a s r e s p o n d i n g .
“The impression I derived from your behaviour is
that you nourish this lavish mentality that you are
the only one so fortunate to be able to see.”
CHAIRPERSON: So was this something that was shocking to you that
h e e x p e c t e d y o u t o s i g n a n i n d i c t m e n t w i t h o u t a p r o s e c u t o r ’s m e m o i n a

20

matter in which you had not previously being involved?
A D V M L O T S H WA : I n f a c t C h a i r p e r s o n b e f o r e I e v e n r e q u e s t – m a d e a
decision to request a memo. I first went through the indictment myself.
As I was going through the indictment I had that very nagging feeling
that the quality of the indictment was not above reproach. So that was
the first thing that gave me that sense of discomfort ...(intervenes).

Page 38 of 77

27 FEBRUARY 2020 – DAY 220
C H A I R P E R S O N : Ye s . Ye s .
A D V M L O T S H WA : A n d t h e n w h a t a g g r a v a t e d t h a t .

The nonexistence

of the memo to explain ...(intervenes).
CHAIRPERSON: H’mm.
A D V M L O T S H WA : T h e i n d i c t m e n t . . . ( i n t e r v e n e s ) .
C H A I R P E R S O N : Ye s . Ye s .
A D V M L O T S H WA :

And then in the telephonic conversation when I

request the memo or the report. Now I am being probed or asked what
is it that I am talking about. As if there is resistance to give me the
10

m e m o a n d t h e n f o u r t h l y, a n y p r o s e c u t o r i a l d e c i s i o n w h e t h e r y o u c a l l i t
o ff i c e n o t e s o r m e m o w i l l s t a y i n t h e f i l e e x p l a i n i n g w h e n w a s t h a t
docket received.
What evidence was there? What decision was there? In an
instance

where

there

is

disagreement

between

the

prosecutors,

b e c a u s e t h e w a y I u n d e r s t o o d i t t h e n . I d o n o t k n o w n o w. F o r m y 1 5
y e a r s w o r k i n g i n t h e O ff i c e o f t h e D P P y o u f i n d t h a t i f t h e S t a t e
Advocate is making a decision.
That decision had to be endorsed by the Deputy Director of
P u b l i c P r o s e c u t i o n s a s s o m e b o d y m o r e s e n i o r i n t h e e n t i t y. I t h o u g h t
20

that that used to serve as a …(indistinct) in an instance where wrong
people are prosecuted or people who are supposed to be prosecuted
are not prosecuted.
So one would always presume that when that indictment was
drafted it should have been on the basis and strength of something that
was – so which would have made it easier for my colleague to say here

Page 39 of 77

27 FEBRUARY 2020 – DAY 220
– is this what you want. So that also gave me sleepless nights. That if
it exists why am I not ...(intervenes).
CHAIRPERSON: So you had a suspicion that it did not exist?
A D V M L O T S H WA : I w a s n o t c o m f o r t a b l e a t a l l .
CHAIRPERSON: Ja. Ja.
A D V M L O T S H WA : T h a t n a g g i n g f e e l i n g . . . ( i n t e r v e n e s ) .
C H A I R P E R S O N : Ye s .
A D V M L O T S H WA : D i d n o t w a n t t o d i v o r c e m e .
CHAIRPERSON: Are you able to say for every matter in which you ever
10

s i g n e d a n i n d i c t m e n t w h i l e y o u w e r e A c t i n g D P P.

There would have

b e e n o r t h e r e w a s a p r o s e c u t o r ’s n o t e . . . ( i n t e r v e n e s ) .
A D V M L O T S H WA : H ’ m m .
CHAIRPERSON: Or would you say ...(intervenes).
A D V M L O T S H WA : W h o .
CHAIRPERSON:

There were some where there might not be a

p r o s e c u t o r ’s m e m o ?
A D V M L O T S H WA : W h o – a s I i n d i c a t e d w i t h 1 5 y e a r s o f m y e x p e r i e n c e
i n t h e D P P O ff i c e K Z N .

All cases where the indictment is signed.

T h e r e w i l l b e a n o ff i c e n o t e i n t h e f i l e , b u t a t t h e t i m e w h e n I a s s u m e d
20

a position as the Acting Director of Public Prosecutions KwaZulu-Natal I
decided to have my own personal parallel process. A parallel process
in terms of which I bought myself black books.
C H A I R P E R S O N : Ye s .
A D V M L O T S H WA : F r o m d a y o n e o f m y a c t i n g u n t i l I w a s r e c a l l e d .
C H A I R P E R S O N : Ye s .

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27 FEBRUARY 2020 – DAY 220
A D V M L O T S H WA : W h e r e I w o u l d r e c o r d . . . ( i n t e r v e n e s ) .
C H A I R P E R S O N : Ye s .
A D V M L O T S H WA : A l l m y e n g a g e m e n t s , m y i n t e r a c t i o n s . . . ( i n t e r v e n e s ) .
CHAIRPERSON: Decisions.
A D V M L O T S H WA :

And including my decisions including the dockets

where – cases where the police would approach me, because I was
accessible at the time to discuss the docket maybe with an inquiry file
without the docket and where I would have given them an advice and
the return date upon which we can meet again to discuss the case
10

f u r t h e r.
So I also used to record that in the event I am not in the
o ff i c e a n d t h e n t h e y c a l l . M a y b e I a m a t t e n d i n g a m e e t i n g . I a m a b l e
t o r e f r e s h m y m e m o r y. S o . . . ( i n t e r v e n e s ) .
CHAIRPERSON:

So this idea that you should sign an indictment in a

m a t t e r w i t h o u t a p r o s e c u t o r ’s m e m o o r n o t e w a s s o m e t h i n g u n h e a r d o f
as far as you are concerned?
A D V M L O T S H WA : I n m y e x p e r i e n c e a s a p r o s e c u t o r i t w a s s o m e t h i n g
unheard of.
C H A I R P E R S O N : Ye s .
20

A D V M L O T S H WA : U n p r e c e d e n t e d l y.
CHAIRPERSON: Unprecedented?
A D V M L O T S H WA : Ye s .
C H A I R P E R S O N : Ye s . O k a y. M r N i c h o l s o n I s e e w e a r e a f e w m i n u t e s
past quarter past. I think I must take the tea break and then when we
resume you can then take it from there.

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27 FEBRUARY 2020 – DAY 220
ADV WILLIAM NICHOLSON:

C h a i r t h a t i s f i n e C h a i r.

I do not have

many ...(intervenes).
CHAIRPERSON: Oh.
A D V W I L L I A M N I C H O L S O N : Ve r y m a n y q u e s t i o n s .
CHAIRPERSON:

Oh.

Have I taken – have I asked most of the

questions you wanted to ask?
A D V M L O T S H WA : Yo u h a v e d o n e s o C h a i r.
C H A I R P E R S O N : O k a y, b u t d u r i n g t h e t e a b r e a k y o u c o u l d r e f l e c t a n d
see whether there are other matters that have not been covered that
10

should be covered.
A D V W I L L I A M N I C H O L S O N : I n d e e d C h a i r.
C H A I R P E R S O N : O k a y. W e t a k e t h e t e a a d j o u r n m e n t . I t i s n e a r l y 2 0
p a s t . W e w i l l r e s u m e a t 11 : 3 5 . W e a d j o u r n .
REGISTRAR: All rise.
I N Q U I RY A D J O U R N S
I N Q U I RY R E S U M E S
CHAIRPERSON:

Ye s M r N i c h o l s o n ?

ADV WILLIAM NICHOLSON:

Mr Mlotshwa we have dealt with the

issue, you said that there was no request from your side to have the –
20

have prosecutors from outside the province prosecute the Cato Manor
case.
A D V M L O T S H WA :

That is correct.

ADV WILLIAM NICHOLSON:

Yo u ’ v e a l s o d e a l t w i t h t h e i s s u e t h a t n o

prosecutor has been charged as one of the reasons put forward for
having prosecutors from outside of the Province.

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27 FEBRUARY 2020 – DAY 220
A D V M L O T S H WA :

That is correct.

ADV WILLIAM NICHOLSON:

Now just one other issue, at the meeting

o f t h e 2 9 t h o f M a y 2 0 1 2 y o u j u s t m a d e r e f e r e n c e t o i t n o w, y o u
indicated that one of the other issues that was put forward for having
outside prosecutors was that there was some security issues that
needed to be taken into account.
A D V M L O T S H WA :

Ye s .

ADV WILLIAM NICHOLSON:

Were those security issues ever fleshed

out?
10

A D V M L O T S H WA :

Unfortunately I will have to go back to the

outstanding pages of my e-mails, that is where I raise all those
concerns that even the issue of security as the Head of the Division I
ought to have been taken on board. In the outstanding pages of the email I make reference to a workshop, SOCA Workshop, S-O-C-A, Sexual
O ff e n c e s a n d C h i l d s o m e t h i n g , s o m e t h i n g W o r k s h o p .
CHAIRPERSON:
A D V M L O T S H WA :

Child Abuse.
Child Abuse yes, that workshop was held at OR so

when I attended ...(intervenes).
CHAIRPERSON:
20

A D V M L O T S H WA :

O R Ta m b o A i r p o r t ?
O R Ta m b o A i r p o r t . S o a s w e w e r e a t t e n d i n g t h a t

workshop I stumbled upon a gentleman who was in the security and risk
s e c t i o n i n t h e N PA , I t h i n k h i s n a m e w a s K e n n y f r o m t h e E a s t e r n C a p e ,
s o a s s o m e b o d y w h o w a s i n t h e R i s k a n d S e c u r i t y S e c t i o n o f t h e N PA
we exchanged greetings and then he asked if I would be leaving that
workshop into one of the bedrooms, of the boardrooms at OR to discuss

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27 FEBRUARY 2020 – DAY 220
t h e i s s u e s o f s e c u r i t y s u r r o u n d i n g t h e C a t o M a n o r m a t t e r.

It is then

that I became aware for the very first time that while we are attending a
SOCA workshop there will also be a separate meeting to discuss
security issues and concerns about KZN.
So in the outstanding pages of the e-mail I also raised that
aspect, that look I felt a bit humiliated as the Head of the Division that
even the issue of security could be discussed without me being
involved and Kenny was not the only one.

There was also another

A d v o c a t e , A d v o c a t e D a w o o d a t N a t i o n a l O ff i c e , h e – a s I w a s g o i n g i n t o
10

the bathroom him exiting he also remarked similarly that I hope you are
joining us soon in the meeting to discuss the issue of security about
t h e C a t o M a n o r.

Then I just flashed a smile and then left, I did not

attend that meeting.
CHAIRPERSON:

Yo u h a d n o t b e e n i n v i t e d t o t h e m e e t i n g ?

A D V M L O T S H WA :

I had not been informed about the meeting nor had

I been invited to the meeting
CHAIRPERSON:

Ye s .

ADV WILLIAM NICHOLSON:

And he also dealt with the issue of the

P r o s e c u t o r ’s m e m o , t h a t y o u h a v e n o t r e c e i v e d t h e P r o s e c u t o r ’s m e m o
20

but simply an indictment.
CHAIRPERSON:

Maybe before that did you get to know who had

convened that meeting that from – to which you were not invited?
A D V M L O T S H WA :

Other than this gentleman Kenny as well as

Advocate Dawood to date I do not know who were the attendees in that
meeting, I was never favoured with the agenda of the meeting, nor the

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27 FEBRUARY 2020 – DAY 220
m i n u t e s o f t h a t m e e t i n g . I a m n o t s u r e i f N PA w i l l b e a b l e t o h e l p t h e
Commission with that.
CHAIRPERSON:

H’mm, h’mm, but you never got more information

than what these two colleagues of your said?
A D V M L O T S H WA :
CHAIRPERSON:

Not at all.
Ye s , o k a y.

ADV WILLIAM NICHOLSON:

Outside of this meeting were you ever

briefed about what security issues should be taken into account?
A D V M L O T S H WA :
10

Chair the e-mail that I referred to on page 9 that is

the e-mail from my fellow colleague, Advocate Chauke, particularly
paragraph number 2, the last sentence, you can see that he is also
p e n d i n g t h e i s s u e o f s e c u r i t y.

He says:

“There are serious issues of security in this matter
which if necessary you will be briefed about, which
are not relevant to you and I cannot expose such to
you at this stage.”
CHAIRPERSON:

Ye s .

S o t h a t ’s w h a t y o u k n e w a b o u t a l l e g a t i o n s o f

security issues in relation to the Cato Manor matter?
A D V M L O T S H WA :
20

CHAIRPERSON:

T h a t i s t h e p o s i t i o n C h a i r.
Ye s .

ADV WILLIAM NICHOLSON:

And as I have said we have dealt with

the issue that you were expected to sign an indictment, although you
h a v e n o t s e e n n e i t h e r t h e d o c k e t n o r a p r o s e c u t o r ’s m e m o .
A D V M L O T S H WA :

That is the position.

ADV WILLIAM NICHOLSON:

Did you in fact sign that indictment?

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27 FEBRUARY 2020 – DAY 220
A D V M L O T S H WA :

Up until I was recalled on the 9th day of December

2012 I had not put my signature on the indictment.
ADV WILLIAM NICHOLSON:

Now that ties up that part of the

evidence, if I can just briefly deal with the racketeering matter in the
Amigos case. Were you involved in drafting of the charge sheets or the
indictment for racketeering?
A D V M L O T S H WA :

With the Amigos case maybe to give the context, as

I i n d i c a t e d I w a s a p p o i n t e d o n 1 7 M a y, I b e c a m e a w a r e o f i t e n d o f M a y
and as soon after that date I requested a meeting with the prosecutor
10

at the time.

So at that time no one had been apprehended in the

m a t t e r, s o t h e p r o s e c u t o r w i l l b e t h e g e n t l e m a n w h o i s n o w w i t h t h e
ICC, Advocate Anton Steinberg.
So when I looked at my notes last night the first meeting I had
with him about the matter was on the 9th of June 2012, him to come sit
d o w n w i t h m e i n t h e o ff i c e a n d t e l l m e w h a t i s i t t h a t h e i s h a v i n g i n
t h a t m a t t e r.
After that I requested another meeting with Asset Forfeiture
U n i t w i t h t h e S A P S p a r t i c u l a r l y t h e I n v e s t i g a t i o n Te a m b e i n g l e d b y t h e
g e n t l e m a n , I t h i n k L t C o l d u P l o o y, a s w e l l a s t h e F o r e n s i c A u d i t i n g
20

Te a m l e d b y Tr e v o r W h i t e .
Thereafter we had a battery of meeting to discuss the matter
because I had to assemble a team that was going to substitute Anton
Steinberg as Anton Steinberg was about to leave the country for a
position at the ICC and indeed I ended up assembling the team led by
Advocate Dunywa, who was and still is a senior State Advocate in the

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27 FEBRUARY 2020 – DAY 220
O ff i c e o f t h e D P P K Z N , I t h i n k t h e o t h e r o n e w a s A d v o c a t e N o m f u n d o
Sipunzi, she is now Regional Court Magistrate in Empangeni, and
another one is a Magistrate in Pietermaritzburg, Mr Vincent Ntanjana
and one senior advocate but junior advocate then, Advocate Mthembu.
ADV WILLIAM NICHOLSON:

O k a y, n o w e v i d e n c e h a s b e e n l e d , t h a t i s

indeed there was a racketeering certificate signed by the then National
– t h e t h e n N D P P, t h e o n e b e f o r e J i b a , w e r e y o u i n v o l v e d i n h a v i n g t h a t
racketeering certificate signed?
A D V M L O T S H WA :
10

In fact in light of the fact that that matter had

reams and reams of documents plus minus 220 000 if my memory
serves

me

well,

not

only

were

the

consultations

and

meetings

c o n t i n u o u s b e t w e e n m y s e l f a n d t h e P r o s e c u t i o n Te a m , t h e r e w e r e a l s o
meetings and consultations held with the then NDPP Advocate Menzi
Simelane, who would time and again have one of his deputies,
A d v o c a t e S i l a s R a m a i t e , W i l l i e H o f m e y e r, b e c a u s e o f t h i s a s p e c t o f
asset forfeiture.
Then eventually after I had satisfied myself that we could enrol
the matter in court with the charge of racketeering it is then that I took
m y t e a m w i t h t h e m e m o t o H e a d O ff i c e t o d o a p r e s e n t a t i o n b e f o r e
20

Advocate Memzi Simelane, as well as his deputies and Willie Hofmeyer
and then at that meeting there was a great deal of unanimity that my
Te a m a n d m y s e l f c o u l d s a f e l y e n r o l t h e m a t t e r i n c o u r t .
S o w h i c h m e a n s t h e N a t i o n a l D i r e c t o r, M e n z i , s i g n e d t h e
racketeering certificate and then as the head of the Division, KZN, I
signed the indictment which includes among other things a charge of

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27 FEBRUARY 2020 – DAY 220
racketeering and money laundering.
ADV WILLIAM NICHOLSON:

Can you recall who was at the meeting

when you briefed Advocate Memzi Simelane about the possible
racketeering charge?
A D V M L O T S H WA :

Obviously it will be myself as the Head of the

D i v i s i o n a n d t h e n t h e P r o s e c u t i n g Te a m , t h e m e m b e r s t h a t I h a v e
a f o r e m e n t i o n e d a n d t h e n f r o m t h e h e a d o ff i c e i t u s e d t o b e t h e N a t i o n a l
Director of Public Prosecutions at the time, Advocate Memzi Simelane
a s w e l l a s h i s d e p u t y, A d v o c a t e S i l a s R a m a i t e a n d A d v o c a t e D a w o o d .
10

Because of the fact that the Amigos case in KZN was
umbilically connected with another Amigos case in the Northern Cape a
d e c i s i o n w a s t a k e n t h a t e a c h t i m e w e m e e t a t N a t i o n a l O ff i c e t o d i s c u s s
the matter that the head of that division in Northern Cape, that would
A d v o c a t e . . . ( i n d i s t i n c t ) b e a l s o p r e s e n t w i t h t h e Te a m t h a t w a s
prosecuting the Amigos case that side.

I am not sure if it was also

called the Amigos case but as far as I remember it involved one
gentleman by the name of John Blogg and I think the matter was
f i n a l i s e d a y e a r o r t w o a g o , a s w e l l a s t h e I n v e s t i g a t i n g Te a m l e d b y L t
C o l d u P l o o y, a n d I t h i n k t h e f o r e n s i c a u d i t o r Tr e v o r W h i t e w o u l d a l s o
20

be present.
ADV WILLIAM NICHOLSON:

O k a y, n o w e v i d e n c e h a s b e e n l e d b e f o r e

t h e C o m m i s s i o n b y t w o w i t n e s s e s , t h a t i s M r Tr e v o r W h i t e a n d C o l o n e l
d u P l o o y, t h a t a m e e t i n g w a s a r r a n g e d f o r t h e 2 3 r d o f M a r c h 2 0 1 2 i n
Durban where Advocate Mrwebi stated at the meeting I have decided to
withdraw charges against Mr Mike Mabuyakhulu and I want to know

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27 FEBRUARY 2020 – DAY 220
what evidence you have against Ms Nkonyene.

Were you consulted

about that?
A D V M L O T S H WA :

In relation to that meeting first and foremost I did

not attend it, I think I had a meeting with the prosecutors in Ladysmith
if not Newcastle.

However at the time when the meeting was held I do

not know how it escaped me, I had not seen that indeed Advocate
Mrwebi had transmitted an e-mail suggesting that the meeting be held,
an e-mail wherein I was also copied, so I became aware of the meeting
because I received, I think it was an SMS from my Line Manager at the
10

t i m e s a y i n g l o o k t h e r e ’s a p r o b l e m i t s e e m s o u r l e a r n e d c o l l e a g u e s i n
the media are chasing us, they want to know what happened at that
m e e t i n g , t h e j o u r n a l i s t s h a v e i n f o r m a t i o n t h a t D u P l o o y, a s t h e
i n v e s t i g a t i o n o ff i c e r, h a d c o n f r o n t e d M r w e b i a s k i n g h i m i f h e w a s t h e r e
t o i n s t r u c t . . . ( i n d i s t i n c t ) t o w i t h d r a w, s o t o c u t a l o n g s t o r y s h o r t I w a s
not present at that meeting.
At a later stage when going through the e-mails it is then that I
realised that when Advocate Mrwebi sent an e-mail that he was coming
d o w n t o K Z N t o m e e t t h e P r o s e c u t i n g Te a m h e h a d i n d e e d c o p i e d m e
in, in respect of that e-mail.

20

ADV

WILLIAM

NICHOLSON:

Were

you

consulted

about

the

withdrawing of those charges?
A D V M L O T S H WA :

I think after that ...(intervenes).

ADV WILLIAM NICHOLSON:
A D V M L O T S H WA :

I am talking about before the meeting.

It is a bit confusing, I would say after that meeting

there was also another meeting that was held in May 2012, that would

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27 FEBRUARY 2020 – DAY 220
be the last meeting me present to discuss the Amigos case, then
J u n e / J u l y t h e n I w a s r e c a l l e d , I d o n o t k n o w w h a t h a p p e n e d t h e r e a f t e r.
CHAIRPERSON:

Is the position that you can’t remember whether

anybody spoke to you prior to that meeting and said we are going to
withdraw charges against particular accused persons in this matter or
we are contemplating withdrawing charges and would like to have your
input.

Is the position that you can’t remember whether anybody spoke

to you about that?
A D V M L O T S H WA :
10

Chair that did not happen until the last meeting, I

am speaking about, that we had to discuss the Amigos case, that would
h a v e b e e n o n t h e 2 3 r d o r 2 9 t h o f M a y.
CHAIRPERSON:

I think there is reference to 29th of May in your

...(intervenes).
A D V M L O T S H WA :

Ye s , t h a t w o u l d b e t h e m e e t i n g w h e r e t h e

chairperson of the meeting, my Line Manager Advocate Jiba, would
have said guys let us sit down and talk. I think her view was there was
a great number of accused is there no way that we can cut down, and
then at that meeting I think Advocate Silas Ramaite came up with the
suggestion that if that were to happen it is not an easy process, we
20

must first discuss what meeting, what evidence was there when the
initial decision was made to enrol the matter in court, to charge people,
so as to be able to make a determination if at this stage something
ground breaking exceptional would have happened to justify us
interfering with the original decision to charge, and then after that
discussion a decision was reached that there appears to be no reason

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27 FEBRUARY 2020 – DAY 220
to tamper with the original decision to charge, then I left that meeting
w i t h t h e P r o s e c u t i n g Te a m o n t h a t n o t e , a n d a s f a r a s I r e m e m b e r t h e
DPP Northern Cape Advocate ...(indistinct) was also present but her
Te a m f r o m N o r t h e r n C a p e w a s n ’ t , b u t t h e d e t e c t i v e s , L t C o l d u P l o o y
and the forensic auditor as well were not present.
CHAIRPERSON:

Was the meeting of the 29th of May that you’re

talking about before the meeting that you missed in KZN attended by
Advocate Mrwebi and Advocate Mosing and Col du Plooy and I think Mr
White when you had gone to have a meeting with prosecutors in New
10

Castle, did it come before or after that meeting?
A D V M L O T S H WA :

I will say the meeting that we had in May was

precipitated by the March meeting that I did not attend.
CHAIRPERSON:

O h , o k a y, o k a y.

A D V M L O T S H WA :

Ye s .

CHAIRPERSON:

So at the meeting that you attended in May was

Advocate Mrwebi there?
A D V M L O T S H WA :

When the meeting started the Chairperson had

indicated that on that morning he had reported to be unwell so she
indicated that she wasn’t sure whether or not Mr Mrwebi was going to
20

join us at a later stage.
CHAIRPERSON:

What about Mr Mosing, was he present at that

meeting?
A D V M L O T S H WA :

No Mr Mosing was not present but at the initial

stages of the meeting Mrwebi came in and joined the meeting as well.
CHAIRPERSON:

Yo u m e a n t o w a r d s t h e e n d o f t h e m e e t i n g ?

Page 51 of 77

27 FEBRUARY 2020 – DAY 220
A D V M L O T S H WA :
CHAIRPERSON:
A D V M L O T S H WA :
CHAIRPERSON:
A D V M L O T S H WA :

At the initial stages of the meeting.
Oh he came after the meeting had started?
Ye s , a f t e r t h e m e e t i n g h a d . . . ( i n t e r v e n e s ) .
But soon after it had started.
Soon after it had started, at the time when the

Chairperson was – because when attending that meeting we had not
been favoured with the agenda of the meeting and so on and so forth,
so the Chairperson was still outlining the purpose of the meeting and
as to how the meeting was going to progress, so before she could finish
10

o ff i n r e s p e c t o f t h e i n t r o d u c t o r y r e m a r k s f e l l o w c o l l e a g u e M r w e b i
stepped in.
CHAIRPERSON:

Did the Lead Prosecutor in that matter was it Mr

Dunywa in KZN
A D V M L O T S H WA :
CHAIRPERSON:
A D V M L O T S H WA :

It was Advocate Dunywa.
Did he attend that meeting?
H e w a s a l e a d e r o f t h e P r o s e c u t i n g Te a m s o I c a m e

with all members.
CHAIRPERSON:
A D V M L O T S H WA :
20

So he was – he attended that meeting.
He was present because at the time when we were

discussing at the meeting there was a firm view that a person who does
the presentation for all in terms of identifying that was there in the
original decision as well as the evidence that was existing at the time
of reconsidering, if I may call it that way for lack of better words, so it
would be more appropriate if that is being done by Advocate Dunywa so
he was also present but my team has changed if I am not mistaken

Page 52 of 77

27 FEBRUARY 2020 – DAY 220
because of promotions and so on and so forth, if I am not mistaken
Advocate Nomfundo Sipunzi had been appointed to act as Regional
Court Magistrate in Western Cape so I drew up the new members but
the lead prosecutor was still there Mr Dunywa ...(indistinct) Mthembu
and the head of the SACU KZN, Advocate Vimbani, Bulelwa Vimbani, so
t h e y w e r e a l s o p r e s e n t a s m e m b e r s o f t h e A m i g o s P r o s e c u t i n g Te a m .
CHAIRPERSON:

Now after the meeting that you missed, which was

attended by Advocate Mrwebi, Advocate Mosing in KZN did you get a
briefing as to what transpired in that meeting?
10

A D V M L O T S H WA :
Line

Manager

Obviously after I had received an SMS from my

saying

please

liaise

with

this

spokesperson,

the

spokesperson at the time was Advocate Mthunzi Maka and see how you
deal with these questions that are coming through.
CHAIRPERSON:

The media queries.

A D V M L O T S H WA :

The media queries, I requested to meet the

P r o s e c u t i n g Te a m .

It was during that meeting where I was informed

that it would appear that the meeting with Mosing and Mrwebi did not
end on the right note, there were heated exchanges, the investigating
o ff i c e r c o n f r o n t i n g M r w e b i a b o u t – b e c a u s e i t w a s a l r e a d y i n t h e m e d i a ,
20

the newspaper had already started writing articles that I was refusing,
there was a perception that I was refusing to withdraw and then I was
going to be forced to withdrawn certain counts and so on and so forth,
so at that meeting it would appear that Lt Col du Plooy confronted
Mrwebi exactly with that allegation, is it true that this is what you
i n t e n d d o i n g s o t h a t ’s t h e r e p o r t I g o t .

Page 53 of 77

27 FEBRUARY 2020 – DAY 220
CHAIRPERSON:

But were you also told that Mr Mrwebi had said they

intended withdrawing the charges against I think Mr Mabuyakhulu I
think.
A D V M L O T S H WA :
CHAIRPERSON:

Ye s M a b u y a k h u l u .
With regard to either Mr Mabuyakhulu or Ms Peggy

Nkonyene, as I understand the evidence of Mr White and Colonel du
Plooy in regard to one of them Mr Mrwebi had said a decision has been
taken to withdraw charges against this one.

Te l l m e w h a t e v i d e n c e

t h e r e i s a g a i n s t t h i s o t h e r o n e , I j u s t c a n ’ t r e m e m b e r w h e t h e r i t ’s
10

...(intervenes).
ADV WILLIAM NICHOLSON:

Chair if I can assist here it was Mr Mike

Mabuyakhulu that Advocate Mrwebi indicated he is withdrawing charges
against.
CHAIRPERSON:

Were you told that that is what had happened at that

time?
A D V M L O T S H WA :

Chairperson I might have misunderstood, the way I

understood it was that during that meeting it was a confrontation
b e t w e e n t h e i n v e s t i g a t i n g o ff i c e r, L t C o l o n e l d u P l o o y c o n f r o n t i n g
Mrwebi with the allegation that the sole purpose why Mrwebi had
20

requested the meeting is because he wanted to achieve this objective
of withdrawing charges against certain accused.
CHAIRPERSON:

So what you were told was more general about

specific two individuals?
A D V M L O T S H WA :
CHAIRPERSON:

It was more general.
Ja, who did you get your report from?

Page 54 of 77

27 FEBRUARY 2020 – DAY 220
A D V M L O T S H WA :
CHAIRPERSON:

I t h i n k I m e t t h e P r o s e c u t i n g Te a m .
T h e w h o l e Te a m ?

A D V M L O T S H WA :
CHAIRPERSON:

The whole – with the ...(intervenes).
Or some of them?

A D V M L O T S H WA :
CHAIRPERSON:

W e n o r m a l l y m e t e v e r y F r i d a y.
Ye s ?

A D V M L O T S H WA :
CHAIRPERSON:

In respect of that project.
Ye s , o k a y.

A D V M L O T S H WA :
10

So I think it was one of those normal Friday

meetings with the team just to get the heads up.
CHAIRPERSON:

Ye s . N o w y o u s a i d t h a t a t t h e m e e t i n g o f t h e 2 9 t h o f

M a y, w h i c h M r M r w e b i a t t e n d e d , y o u s a i d t h a t t h e c o n c l u s i o n w a s t h a t
no charges were to be withdrawn, did I understand you correctly?
A D V M L O T S H WA :

That was the unanimous decision.

CHAIRPERSON:

Which means even Mr Mrwebi went along with that

decision?
ADV

M L O T S H WA :

Including

Willie

H o f m e y e r,

Silas

Ramaite,

...(Indistinct), as well as my team.
CHAIRPERSON:
20

Ye s , o k a y, t h a n k y o u .

ADV WILLIAM NICHOLSON:

Now just to be clear the evidence of

C o l o n e l d u P l o o y a n d Tr e v o r W h i t e i s t h a t a t t h e c o m m e n c e m e n t o f t h e
meeting of the 23rd of March 2012 Advocate Mrwebi almost in his
introductory remarks he said:
“I

intend

withdrawing

charges

against

Mr

Mike

Mabuyakhulu and what evidence do you have about

Page 55 of 77

27 FEBRUARY 2020 – DAY 220
Ms Nkonyene.
Were you consulted about the withdrawal of the charges
against Mr Mike Mabuyakhulu?
A D V M L O T S H WA :

No.

ADV WILLIAM NICHOLSON:

Does Advocate Mrwebi have the authority

to withdraw charges – to withdraw those charges?
A D V M L O T S H WA :

My understanding of the situation was that

A d v o c a t e M r w e b i w a s a S p e c i a l D i r e c t o r, S p e c i a l i s e d C o m m e r c i a l C r i m e
U n i t a t t h e N a t i o n a l O ff i c e . S o a d e c i s i o n t o p r o s e c u t e h a d b e e n t a k e n
10

by myself as the Head of the Division obviously in conjunction with the
P r o s e c u t i o n Te a m i n t h e m a t t e r.

So when it comes to a direct answer

whether or not he could withdraw I think if one looks at the nature of
the law that could happen in conjunction with or in consultation with the
D P P, b u t i n t h e l i g h t o f t h e f a c t t h a t t h e c e r t i f i c a t e h a d b e e n s i g n e d b y
the National Director of Public Prosecutions I think that would have
necessitated a thorough comprehensive presentation to the National
Director of Prosecutions in terms of demonstrating what is that would
have changed to warrant the interference with the original decision and
make the decision that has been made.
20

ADV WILLIAM NICHOLSON:

O k a y, s o y o u h a v e a l r e a d y t e s t i f i e d t h a t

subsequent to the March 2012 meeting – a meeting on the 29th of May
2012 this issue was rehashed and it was agreed that charges will not
be dropped.
A D V M L O T S H WA :

That was the unanimous decision.

ADV WILLIAM NICHOLSON:

In August of 2012 charges were

Page 56 of 77

27 FEBRUARY 2020 – DAY 220
withdrawn against Mr Mike Mabuyakhulu and Ms Nkonyene, were you
consulted on the decisions to withdraw those charges as well as four
other people?
A D V M L O T S H WA :

When the decision to withdraw charges was made I

had already gone back to my position as a Deputy Director Public
Prosecutions so I was no longer the Head of the Division so – but to
answer you directly I was not consulted regarding the withdrawal of the
charges.
CHAIRPERSON:
10

But the point you make is that there was no need for

anybody to consult you at that time because you were no longer acting
DPP?
A D V M L O T S H WA :
CHAIRPERSON:

I t h i n k s o C h a i r.
Ja, you would need to be consulted if you were still

acting as the head, isn’t it?

Or did you remain part of the Prosecution

Te a m i n t h e c a s e i n w h i c h c a s e m a y b e t h e n y o u m a y h a v e n e e d e d t o b e
c o n s u l t e d i n t h a t c a p a c i t y, n o t i n t h e c a p a c i t y o f A c t i n g D P P ?
A D V M L O T S H WA :

The day I stepped down, on the 9th, you will see as

I testified Chair in the Mokgoro Commission of Inquiry I had made an
u n d e r t a k i n g t o p r e p a r e a h a n d o v e r r e p o r t f o r m y s u c c e s s o r.
20

The

following Monday would have been the 12th of July 2012, so during that
weekend I put together the handing over report including the sensitive
f i l e s t h a t I h a d i n m y c u s t o d y, t h e h u g e p r o j e c t s t h a t I w a s h a n d l i n g i n
the matter including the certificates that I had that my successor had to
be aware of. So, the following Monday the twelfth I gave the successor
the handover report with all the files that I was handling. That was the

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27 FEBRUARY 2020 – DAY 220
last time I knew what was happening in the matters.
CHAIRPERSON:

Ye s , b u t t h e q u e s t i o n w a s i f y o u w e r e n o l o n g e r

acting DPP would there have been any basis upon which it can be said
you should have been consulted after you had stepped down.
M R M L O T S H WA:

I n the w or l d o f i d e a l i s m , C h a i r, i d e a l l y a s a p e r s o n w h o

h a d b e e n h a n d l i n g t h e p r o j e c t s i n c e 9 J u n e 2 0 1 0 , i t i s n ow J u l y 2 0 1 2.
Two years later. Ordinarily, it will not have been unreasonable f o r o n e t o
e x p e c t a p e r s o n t o s a y M l o t s h w a y o u s e e ms to b e a u fa i t with t h e i n s a nd
outs of the project merely to reduce certain things to dimension how does
10

X Y happen? So, I was completely out of the picture.
CHAIRPERSON :

Yes , y es .

M R M LO T S H WA:

Th at i s t he w orld of re alism.

CHAIRPERSON :

Yes , y es , ok ay.

ADV WI LL IA M NICHOLSON :

Now, in August 2012, when the charges

were withdrawn, the evidence was le d t h a t y o u w e r e n o l o n g e r, t h a t w a s
t he, th e dec i s ion w as t ak en by Advo cate Noko . I s th a t co rre ct?
CHAIRPERSON :

Well he was no longer there.

M R M L O T S H WA:

I w as n o l o n g e r a c t i n g , I w a s a l s o r e a d i n g i t i n t h e

newspapers
20

I thi nk t hat w ill be tho se a rticles, th at yo u – t h a t a r e

attached to these bundles.

I w a s a l s o f o l l o w i n g th e m a t t e r i n the

n e w s p a p e r s …(i n t e r v e n e s).
CHAIRPERSON :

No, I think it is enough t h a t y o u w e r e n o l o n g e r t h e r e .

M R M L O T S H WA:

O k a y.

ADV WILLIAM NICHOLSON :

Now, how were you – wh e n d i d y o u f o r m a l l y

b e c o m e a w a r e t h a t y o u w i l l b e r e m o v e d f r o m y o u r r o l e a s A c t i n g DPP?

Page 58 of 77

27 FEBRUARY 2020 – DAY 220
M R M L O T S H WA:

Th at I wa s go ing to be re mo ved, I t h ink f rom Feb rua r y

2 01 2 u n t i l J u l y t i m e a n d a g a i n i n t h e n e w s p a p e r s t h a t w o u l d c r o p u p t h a t I
was bucking under pressure. There was a firm view that a need is there
f or me t o be re mov e d a n d e v e n w h e n I w as a tt en din g th e fu n erals durin g
t he week end s , s o me p eople will a ppro a c h m e a n d g i v e t h e i r s y m p a t h i e s t o
me, that they sympathize with me, this was an axe was about to fall on
my head.
ADV WILLIAM NICHOLSON :

Besides the m e d i a r e p o r t s a n d t h e i n f o r m a l

c o n v e r s a t i o n s t h a t y o u h a d , w h e n w e r e y o u f o r m a l l y a d v i s e d t h a t y ou r
10

t i me f o r DPP is now up – a c t i n g D P P i s n o w u p ?
M R M L O T S H WA:

I f I am no t mista ke n t h ere wa s a p oin t whe re m y

s u c c e s s o r, b e c a u s e s h e w a s t h e H e a d o f t h e Ta x U n i t h a d a m e e t i n g w i t h
h e r Un i t i n D u r b a n , s o m e b o d y a t t h a t m e e t i n g , o n e o f h e r s u b o r d i n a t e s
d i d c a l l m e t o s ay :
“Haibo here the Supervisor is saying, she will be
t a k i n g o v e r f r o m y o u a s t h e D P P. ”
On the basis and strength of that call, I wanted to know with
c e r t a i n t y t o whether or n o t t h a t w a s t h e p o s i t i o n . I d e c i d e d t o t r a n s m i t a n
e -m a i l t o t h e t hen Ac ti n g C E O i n t h e C h a i r p e r s o n , A d v o c a t e K a r i n Va n
20

Rensburg. In the e -m a i l , I w a s p a r t i c u l a r. Ru m o u r i s f l y i n g f a s t a n d t h i c k
t hat m y da y s a re numbere d, I will b e remo ved as t h e He a d o f t h e
Province. Ta g ta k e m e i n t o y o u r f u l l c o n f i d e n c e , i s t h i s r u m o u r t r ue ? S h e
responded in a Veritas e -m a i l , o n e o r t w o l i n e s , s a y i n g :
“No formal position has been taken in that regard.
Consider

yourself

as

being

the

Page 59 of 77

Head

of

the

27 FEBRUARY 2020 – DAY 220
Province.”
Th at is wh y my lo we r jaw drop ped a da y o r tw o whe n I re ceive d
a c al l f r o m A d v o c a t e J i b a s a y i n g , c a n y o u p l e a s e c o m e t o H e a d O ff i c e o n
a F r i d a y, t h a t w a s t h e 9 t h . So , I co uld the n re la te wh at I h ad ha d w ith t he
i n v i t a t i o n f o r t h e m e e t i n g a t N a t i o n a l O ff ic e .

So psychologically I was

p r e p a r e d , s o i n d e e d w h e n I w e n t t o t h e Headquarters NPA , u p on en try i n
h e r c h a m b e r s s h e w a s w i t h A d v o c a t e T h o k o M a j o k weni , t he Acting He ad ,
Prosecution Services at the time, and my successor was also there.
O t h e r t h a n s h o r t ex c h a n g e o f g r e e t i n g s , m y L i n e M a n a g e r J i b a t o l d m e
10

t hat S imp hiw e y ou h a v e t o h a n d o v er to yo u r su cce ssor, a d ecision h a d
b e e n m a d e t h a t s h e t a k e s o v e r. S h e t h a n k e d m e f o r t h e e x c e l l e n t j o b t h a t
I had don e i n t he P rovi nc e. I also o n my o wn a cco rd t o ok h er i n t o m y f u l l
c o n f i d e n c e i n t e r m s o f a s s u r i n g t h e m t h a t I w a s prepared, willing and
re a d y t o p u t t o g e t h e r t he h a n d o v e r r e p o r t , s o t h a t m y s u c c e s s o r c o u l d
h a v e a s o f t l a n d i n g o n t h e a c t i n g j o b t h e f o l l o w i n g w e e k. H e n c e I h a d t o
g i v e h e r t h e h a n d o v e r r e p o r t o n a M o n d a y, o n 1 2 J u l y 2 0 1 2 .
ADV WILLIAM NICHOLSON :

So , y o u r e v i d e n c e i s , y o u w e r e f o r m a l l y

informed on the 9th of July 2012 and you did the handing over report on
t he 12 t h o f J u l y 2 0 1 2 .
20

M R M L O T S H WA:

Yes . An d th is h a pp en s in the f u ll co nt e xt of t he f ac t

t hat i n i t i a l l y I w a s a p p o i n t e d f o r s i x m o n t h s . A fte r s i x m o n t h s t h e r e w a s a
v i ew that I had done well in the Province.
extended by another six months.

That s i x m o n t h s h a d t o b e

During that time they were trying to

c l e a r u p t h a t p o s i t i o n o f the DPP at the time .

Advo ca te Sh amila Ba to h i

with th e I C C , s o a f t e r 1 2 m o n t h s o f m y a c t i n g a m e m o w a s c i r c u l a t e d

Page 60 of 77

27 FEBRUARY 2020 – DAY 220
t hr ough out t he c ount ry to all t he p rosecutors saying up until the situation
o f S h a mi l a w a s , A d v o c a t e S h a m i l a B a t o hi w a s c l e a r e d u p , I w o u l d r e m a i n
t he A ct in g H e a d o f P r o s e c u t i o n s i n K Z N .

W h ic h w a s c o n t r a d i c t e d b y a

record, because if t hat cir cu lar wa s sa yin g up un t il t h e sit uat ion of
Shamila is cleared, and then now I am recalled before that situation was
cleared.

H e n c e I i n d i c a t e d t h a t t h e r e w e r e s o m e c o l le a g u e s i n p r i v a t e

p r a c t i c e were p r ep a r e d t o r e p r e s e n t m e p r o a m i c o i n t e r m s o f ta king b ot h
t he M ini s t er and t he P resid en t to c o u r t i n r e l a t i o n t o a l e g i t i m a t e
expectation because in these circumstances, the expectation for my
10

p e r m a n e n t a p p o i n t e d w a s n o t s el f -i n d u c e b u t w a s i n d u c e d b y m y
c o mm u n i c a t i o n w i t h t h e e n t i t y.
CHAIRPERSON :

Where i s t h a t c i r c u l a r ? I t i s n o t h e r e b e c a u s e I d i d n o t

s e e i t h e r e. You a re not aw a re t hat it is h ere?
ADV WILLIAM NICHOLSON :
CHAIRPERSON :

It is n o t h e re.

L o o k i n g a t M r Ni c h o l s o n , h e d o e s n o t t h i n k i t i s h e r e .

Would you be able to find it?
M R M L O TSHWA:

I will be sending the first appointment of s i x m o n t h s ,

t he e xt ens i on o f s i x m o n t h s , t h e e-m a i l s a y i n g u p u n t i l t h e p o s i t i o n o f t h e
p e r m a n e n t D P P w a s c l e a r e d u p , I w i l l r em a i n a c t i n g .
20

CHAIRPERSON :

Yes , now y ou s aid that on the 9 t h o f J u l y 2 0 1 2 , w he n

y o u m e t w i t h M i s s J i b a a n d M i s s Noko a n d Advocate M a j o k weni I th in k
a n d M i s s J i b a s a i d y o u h a n d t o h a n d o v e r t o M i s s Noko . D i d y o u s a y t h a t
s h e t h a n k e d y o u f o r a n e x c e l l e n t j o b d on e ?
M R M L O T S H WA:

Yes , y es .

She told me I had executed – I h a d

a c q u i t t ed m y s e l f w e l l a s t h e A c t i n g D P P K Z N .

Page 61 of 77

27 FEBRUARY 2020 – DAY 220
CHAIRPERSON :

Are you sure that that is what she said?

M R M L O T S H WA:

Yes , I c an …(i n t e r v e n e s).

CHAIRPERSON :

You are s ure about that?

M R M L O T S HWA:

Yes , I am .

CHAIRPERSON :

Yes , now, y ou had been ac ting in this pos i t i o n f o r a b o u t

what?
M R M L O T S H WA:

Tw o y e a r s .

CHAIRPERSON :

Tw o y e a r s .

During that time would there have been

p e r f o r m a n c e a p p r a i s a l s a b o u t h o w y o u w e r e p e r f o r m i n g a s A c t i n g DPP?
10

M R M L O T S H WA:

I thi nk ye s, I h ad su cceed ed in g ett ing a cas h

performance bonus.
CHAIRPERSON :

Yes .

M R M L O T S H WA:

And then m o s t i m p o r t a n t l y m y q u a l i f i c a t i o n s a r e C h a i r,

I h ad a Baccalaureus L L. B Masters Human Resource I think I was busy
with my BA Honours in Philo s o p h y .. .(int e rven es).
CHAIRPERSON :

Yes .

M R M L O T S H W A: So , e v e r y b o d y i n t h e d i v i s i o n i n c l u d i n g t h e j u d i c i a l b o t h
i n t h e L o w Court and High Court will say the same whenever I stumble
u p o n t h e m t h a t w e a r e l o o k i n g f o r w a r d t o y o u r p e r m a n e nt ap po in tmen t.
20

CHAIRPERSON :

Yes . But now I am look ing at whether there were a n y

p e r f o r m a n c e a s s e s s m e n t s o r a p p r a i s a l s d o n e w i t h i n t h e N PA b y y o u r
superiors which reflect what they thought about your performance for that
t i me …(i n t e r v e n e s).
M R M L O T S H WA:

J a , i n t e r m s o f …(i n t e r v e n e s).

CHAIRPERSON :

I s th ere so met hin g in w riting ?

Page 62 of 77

27 FEBRUARY 2020 – DAY 220
M R M L O T S H WA:

I t hin k if o ne go e s t h roug h t he arch ives in NPA in

t er ms o f ran ki ng s wh en I wa s a ppo inte d I t h in k th e d ivisio n wa s n u mb e r 8
s u b j e c t t o c o r r e c t i o n s o f c o u r s e . But in the follow i n g y e a r 2 0 11 M a r c h o r
April I think we were number 2 a n d t h e n I go t a c a s h p e r f o r m a n c e b o n u s
…(i n t e r v e n e s).

10

CHAIRPERSON :

Yes .

M R M L O T S H WA:

Monetary reward.

CHAIRPERSON :

Fo r g ood p erfo rman ce .

M R M L O T S H WA:

Fo r g o o d p e r f o r m a n c e .

Yes , and mo s t i m p o r t a n t l y i f

y o u l o o k a t t h e P u b l i c S e r v i c e A c t i t s t i p u l a t e s , I h a ve n o t c h e c k e d n o w I
checked then, it stipulates that if you act in the Public Service you cannot
b e r e m u n e r a t e d f o r a p e r i o d e x c e e d i n g 1 2 y e a r s . M e a n i n g , t h e l a s t t i me I
received a s a l a r y f o r b e i n g t h e A c t i n g H e a d o f t h e Prosecution was 2011
i n M a y.

W h e n I w as h avin g a ll the se prob lems you w ere see ing in t h e

media I was not even getting paid for it, I was getting paid for the Deputy
Director Public Prosecutions positi o n . O f c o u rs e , w i t h t h a t i n d i c a t i o n t h a t
i t i n e r a n t i t w o u l d a p p e a r t h a t y o u w i l l h a v e b ee n a p p o i n t e d p e r m a n e n t l y
s o I d o n ’ t worry.
CHAIRPERSON :
20

So, but – I a m a s k i n g w h e t h e r s o m e w h e r e t h e r e y o u

s h o u l d b e d o c u m e n t o r d o c u m e n t s t h a t r e c o r d h o w y o u r p e r f o rm a n c e w a s
v i e w e d b y y o u r s u p e r i o r s d u r i n g t h e t i m e y o u w e r e A c t i n g D P P.
M R M L O T S H WA:

My understanding is that the Acting – the CEO at the

t i me wa s A dv o c at e Karen v a n R e n s b u r g I t h i n k t h a t w o u l d b e t h e p e r s o n
at

the

time

best

place

to

have

the

…(i n t e r v e n e s).

Page 63 of 77

documentation

I

think

she

27 FEBRUARY 2020 – DAY 220
CHAIRPERSON :

Are you saying there should be documentati o n ?

M R M L O T S H WA:

Th ere sh ou ld be d ocu men tat ion.

CHAIRPERSON :

Were

there

performance

conducted on your performance?

assessments

there

were

O r o n t h e p e r f o r m a n c e o f y o u r o ff i c e

Ac t i n g D P P.
M R M L O T S H WA:

Th e NPA generally after three months there will b e

t hos e pe rfo rma nc e ass es smen t wit h the diff er en ce b e in g t h a t so me a r e
f or ma l s ome a re in fo rm al .

10

CHAIRPERSON :

Yes .

M R M L O T S H WA:

But, with the last annual performan c e a s s e s s m e n t i t

will definitely be formal and it is on the basis and strength of it tha t a
determination is made whether you deserve a monetary reward for
excellent job or not.
CHAIRPERSON :

So, the one in respect of which you were given a cash

bonus or payment for good performance, when did that happen?

Just

b e f o r e y o u s t e p p e d d o w n o r m u ch e a r l i e r ?

20

M R M L O T S H WA:

I t hin k th at w ou ld ha ve hap pen e d in 2 011.

CHAIRPERSON :

2 0 11 ?

M R M L O T S H WA:

Yes , 2011.

CHAIRPERSON :

Would you remember wheth e r i t m i g h t h a v e b e e n

t owards t he e nd of 20 11 .
M R M L O T S H WA:

M y u n d e r s t a n d i n g t h e n I d o n o t k n o w n o w.

CHAIRPERSON :

Ja.

M R M L O T S H WA:

Th e G o v e r n m e n t f i n a n c i a l y e a r c o m m e n c e s o n I t h i n k

1 s t o f A p r i l t o e n d o f M a r c h t h e f o l l o w i n g y e a r. Ye s . S o , t h e o n e th a t I am

Page 64 of 77

27 FEBRUARY 2020 – DAY 220
making reference to will be the one that would have wrapped up I think
2 0 11, M a r c h .
CHAIRPER SON :

M a r c h , o k a y.

M R M L O T S H WA:

But more often than not you will find that even though

t he y ear e nds in March b ut th e proce ssin g o f t he asse ssme n t s
…(i n t e r v e n e s).
CHAI RPE RS ON:

Ja, continue.

M R M L O T S H WA:

Will be a bit delayed and then you find that t h e

payments in relation to that cash performance bonuses maybe are paid in
10

M a y, J u n e o r J u l y.
CHAIRPERSON :

Yes , but did y ou s ay that when y ou s tarted as A c t i n g

DPP in t erms of perfo rman ce th e KZN DPP’s off ice was ra nked nu mbe r
e i g h t o u t o f n i n e p r o v i n c e s, is th at w ha t you sa id .
M R M L O T S H WA:

As far as my memory serves me well th at w as t h e

position.
CHAIRPERSON :

Yes . An d when you stepped down do you know where it

was ranked .
M R M L O T S H WA:

When I stepped down I think it had i t w a s I t h i n k i t w a s

– I wo u l d h a v e g o b a c k t o t h e d o c u m e n t .
20

CHAIRPERSON :

Well you can i f y o u r e m e m b e r fo r su re you ca n t e ll u s i f

y o u a r e n o t s u r e y o u c a n s a y yo u t h i n k i t w a s r a n k e d w h a t e v e r
…(i n t e r v e n e s).
M R M L O T S H WA:

I c ann ot reme mbe r th e po sit ion , b ut it w as no long er

. .. ( i n t e r v e n e s ) .
CHAIRPERSON :

L e a v e r o o m f o r …(i n t e r v e n e s).

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27 FEBRUARY 2020 – DAY 220
M R M L O T S H WA:

I t w as still pe rfo rmin g w ell b u t no lon ger nu mb er t wo i t

i s j u s t t hat I d o not ha v e t h e s p e c i f i c s w h e n I s t e p p e d d o w n .
CHAIRPERSON :

Would it have been around three or four?

M R M L O TSHWA:

I ca nnot p u t m y .. .(int e rven es).

CHAIRPERSON :

You c annot remember ?

But had there been a huge

i m p r o v e m e n t i n t h e p e r f o r m a n c e o f th at o ff ice sin c e y o u t o o k o v e r, c a n
one say that?

10

M R M L O T S H WA:

I ca n s a fe ly say t h at.

CHAIRPERSON :

Yes , ok ay.

Is there something you can find later on

a n d s e n d t o t h e L e g a l Te a m th at mig h t ref lect wha t th e p o sitio n wa s or i s
t hat s ome th ing t hat w oul d b e d i ff i c u l t t o fin d af te r so man y ye ars?
M R M L O T S H WA:

As I have indicated that I am no longer in the NPA the

o n l y d o c u m e n t a t i o n t h a t I w i l l b e a b l e t o p r e s e n t h e r e a t th e C ommissio n
will be the document explaining my appointment for first six months, t h e
extension of six months, and the circular saying up until the position of
t he perm anen t D PP ’s c l arified I wo uld re m a i n t h e A c t i n g H e a d .
CHAIRPERSON :

Okay and you say that at the time you were asked to

s t e p d o w n t h e p o s i t i o n r e l a t i n g t o A d v o c a t e B a t o h i h a d n o t b e e n f in a l i z e d
as far as you recall?
20

M R M L O T S H WA:

As far as I recall she was still with the ICC at the

Hea d .
CHAIRPERSON :

Yes , y es . O k ay, alright.

M R M L O T S H WA:

But I think, at that time there was a suggestion that

s h e h a d t a k e n I a m n o t s u re w h e t h e r a c o n tract of five years or seven
years.

Page 66 of 77

27 FEBRUARY 2020 – DAY 220
CHAIRPERSON :

Yes . O k ay.

M R M L O T S H WA:

So, in other words it ha d b e e n c l a r i f i e d .

CHAIRPERSON :

Yes .

M R M L O T S H WA:

Wa r r a n t i n g o r j u s t i f y i n g t h e p e r m a n e n t a p p o i n t m e n t .

CHAIRPERSON :

O k a y, n o t h a t i s f in e . A n d M i s s No k o, wh at p osition d i d

she hold at the time she – you stepped down when before she became
Acting DPP?
M R M L O T S H WA:

Sh e w a s o n e o f t h e D e p u t y D i r e c t o r s o f P u b l i c

Prosecutions Head in the Tax Unit in Durban.
10

CHAIRPERSON :

Yes , ok ay. O k ay, n o t h a t i s f i n e .

M R M L O T S H WA:

I n f act , sh e wa s my su bord inat e re port ing to me .

CHAIRPERSON :

She was your subordin a t e . O k a y. M r N i c h o l s o n .

ADV WILLIAM NICHOLSON :

O k a y, n o w j u s t t o w r a p u p o n t h i s p o i n t the

i s s u e o f M i s s Noko – Ad v o c a t e Noko b e i n g a p p o i n t e d , i n w h i c h o ff i c e d i d
she work?

Yo u s a y s h e w a s y o u r s u b o r d i n a t e i n w h i c h o ff i c e d i d s h e

work?
M R M L O T S H WA:

She was in the Tax Unit, Durban.

ADV WILLIAM NICHOLSON :
M R M L O T S H WA:
20

What does the Tax Unit do?

Th at w ill b e t he Unit a s s i g n e d w i t h th e du ty and

respon s i b i l i t y t o p r o s e c u t e t h e Ta x VAT t r a n s g r e s s i o n s .
ADV WILLIAM NICHOLSON :
M R M L O T S H WA:

O ff en c e s .

ADV WILLIAM NICHOLSON :
M R M L O T S H WA:

O k a y.

Do you know how long she was in the NPA .

No, no.

ADV WILLIAM NICHOLSON :

Are you able to c o m m e n t o n h e r c o u r t

Page 67 of 77

27 FEBRUARY 2020 – DAY 220
experience?
M R M L O T S H WA:

You mean in terms of me s eeing her to go to c ourt

d u r i n g t h e t i m e w h e n sh e w a s m y s u b o r d i n a t e ?
ADV WILLIAM NICHOLSON :

Well, can you say anything about her court

experience?
M R M L O T S H WA:

Ay, I do not remem b e r.

CHAIRPERSON :

O k a y. D i d M i s s J i b a t e l l y o u – g i v e y o u a n y p a r t i c u l a r

reason why you were being asked to step down a t t h e t i m e t h a t s h e a s k e d
you to step down, particularly in the light of the circular that you talked
10

about?
M R M L O T S H WA:

Chair, at th e t i m e w h e n s h e i n d i c a t e d t h a t I h a d t o d o

h a d t o h a n do v e r a n d a t t h a t t i m e I w a s p e r s o n a l l y I w asn ’t o k a y b e c a u s e
of stress as you could see in the newspapers that they were reporting
t hat I wa s b u c k i n g u n d e r p r e s s u r e . T h a t w a s i n d e e d t h e p o s i t i o n t o s uc h
an extent that in June 2012 I was supposed to be running my third or
f ourt h

Comra de

M ar at hon

my

–

th e

family

doctor

had

made

a

recommendation that I should not run because of my state of – e m o t i o n a l
s t a t e . S o , t o m e i t c a m e a s a g r e a t r e l i e f. T h e o n l y t h i n g I c o u l d d o t o
h e r w a s t o t h a n k h e r o n b e h a l f o f t h e N PA f o r h a v i n g a c c o r d e d m e a n
20

o p p o r t u n i t y t o g e t a n e x p e r i e nc e a n d e x p l o r e w h a t e v e r i d e a s I h a d t h a t I
c o u l d c o n v e r t i n t o d e l i v e r a b l e s w i t h i n t h e e n t i t y.
CHAIRPERSON :

I t s o u n d s l ik e y o u w a n t e d t o g e t o u t o f t h e p o s i ti o n , i s

t hat tru e or not rea ll y ?
M R M L O T S H WA:

No, no.

CHAIRPERSON :

You did not want to get out o f t h e p o s i t i o n ?

Page 68 of 77

27 FEBRUARY 2020 – DAY 220
M R M L O T S H WA:

All I am trying to say is that the circumstances were so

unbearable.
CHAIRPERSON :

Yes , y e s .

M R M L O T S H WA:

To s u c h a n e x t e nt t ha t I w as exp e cting a n yth ing no t

t hat I want ed t o . . .(i nt erv en es).
CHAIRPERSON :

G e t o u t o f th e p o s i t i o n ?

M R M L O T S H WA:

To g e t o u t o f t h e p o s i t i o n .

CHAIRPERSON :

What was bringing about this – what was c a u s i n g t h i s

stress that you are talking about in, because I assume it was work related
10

o b v i o u s l y, I a m n o t i n t e r e s t e d i n p e r s o n a l m a t t e r s .
M R M LO T S H WA:

I t w as q uite a nu mb er of pro f essio nal rea so ns. Am ong

o t h e r s , w h e n I t o o k o v e r a s t h e He a d o f t h e Di v i s i o n . R i s k a n d S e c u r i t i e s
Services conducted a n i n v e s t i g a t i o n , a n d w h e n t h e i n v e s t i g a t i o n w a s
conducted it was then that the investigation was able to unearth that my
life and that of my family was not safe.
CHAIRPERSON :

Were you in danger?

M R M L O T S H WA:

So, we were in danger. On the basis and st rength of

t hat I w as affo rded, a n d I wa s g iven se curit y bo dygu ards a nd se curit y a t
my house.
20

So, as people were talking about all these things me being

under pressure. On the side, I was also having a problem – an allegation
t hat in t he f irs t p lac e I n eve r deserved security and then there were
c e r t a i n a l l e g a t i o n s p e o p l e s a y i n g I a m a b u s i n g s e c u r i t y.
Myself and my kids, and my family we are inseparable, people
s t a r t i n g t o q u e s t i o n h o w c o m e w h e n t h e y g o t o s ch o o l I a m t h e r e w i t h
s e c u r i t y a n d s o o n a n d s o fo rth . So, a nd th en whe n I st epp ed d o wn w hen

Page 69 of 77

27 FEBRUARY 2020 – DAY 220
I l e f t t he o ff ic e I us e d t o a rrive e arly in the morn i n g a n d l e a v e l a t e , se v e n
o ’ c l o c k , s i x o ’ c l o c k . As w e w e r e l e a v i n g w i t h th e b od yg ua rds rece i v e d a
call prior to my calling, they received a call I think few meters out of my
o ff i c e s a y i n g I m u s t b e d u m p e d o n t h e r o a d . S o , b e c a u s e I h a d w o r k e d
with them f or a n umb er of mo n ths a f te r re ceivin g tha t call th ey t old m e
t hat :
“Ay look the call that we a r e r e c e i v i n g i s t h a t w e
need to dump you here on the road.”

10

CHAIRPERSON :

Th is is no w on th e .. . (i n t e r v e n e s).

M R M L O T S H WA:

Th at i s 2 01 2.

CHAIRPERSON :

Day a f t er …(i n t e r v e n e s).

M R M L O T S H WA:

No, around March .

CHAIRPERSON :

O h , l o n g b e f o r e y o u s t e p p e d d own.

M R M L O T S H WA:

L o n g b e f o r e , a m o n t h o r tw o b ef ore I ste pp e d dow n, I

h a d b e e n – t he sec u rit y h ad be e n remove d fro m me.

So as – th ey

received that call in t he ca r th ey to ld me th at th e y w ere receiving a n
instruction to dump you here on the road, what do you say?
Th en I t ol d th em th a t:
“Guys I do n ot giv e a d amn eve n if I lose a job w ith yo u, I
20

f eel s orry f or y ou g uys. Make a de cision if you will not be
fired by proceeding to take me home because we are now
seven kilometres away from my house, if your job is safe
we can proceed and you can dr o p m e o ff a t h o m e , o r i f y o u
drop me here I can call the wife at home to come and pick
m e u p . I w i ll t ell he r wh ere I am a nd t hen t he y said it w as

Page 70 of 77

27 FEBRUARY 2020 – DAY 220
v e r y, t h e s i t u a t i o n w a s v e r y s o u r i n t h e c a r, t h e y s a i d n o
we will rather drop you off at home, we will see what they
do at work.”
So, few minutes later they also received a call . Bo d y g u a r d s f r o m
t he s ec uri t y g ua rds at h o m e b e c a u s e t h e y w e r e s t a b l e g u a r d s w h o w e r e
guarding my house.

S o t h o s e s e c u r i t y g u a r d s w e r e c a ll i n g t h e

b o d y g u a r d s a s k i n g i f t h e y r e c e i v ed a n y c a l l b e c a u s e t h e y h a d a l s o
received a call saying they must leave my house. So, it was a c o c k t a i l
. .. (i nt erv e n e s ) .
10

CHAIRPERSON :

I t w as a nu mbe r o f f acto rs.

M R M L O T S H WA:

Accumulating

effect

of

which ,

hospitalized for bloods and so on and so forth.
saying

they

could

attribute

it

to

nothing

so

I

had

to

be

And the doctors were
else

but

a

stressful

. .. (i nt erv en e s ) .
CHAIRPERSON :

Stress .

M R M L O T S H WA:

Environment I was finding myself in.

So, when I

receiv e d t h a t c a l l t o g o t h e r e …(i n t e r v e n e s).

20

CHAIRPERSON :

So, that was the context why you had to leave.

M R M L O T S H WA:

So, in a way what they were saying accep t wh at eve r.

Yes , y es .
CHAIRPERSON :

O k a y, a l r i g h t .

ADV WILLIAM NICHOLSON :

Do I understand that v e r y a b r u p t l y t h e

guards were removed from you?
M R M L O T S H WA:

Th at w as t h e p o sitio n .

ADV WILLIAM NICHOLSON :

And who provided these protectors and

Page 71 of 77

27 FEBRUARY 2020 – DAY 220
security guards at your home?
M R M L O T S H WA:

As I indicated there were threats at my house, there

were threa t s i n t he off i c e, pe op le ca lling no t te ll i n g , n o t i n d i c a t i n g w h o
t hey we re, bu zz i ng a t t he ga te at ho me a n d so o n a n d so fo rt h , r ep o rt ed
to

C rim e

I nt el l i ge n c e .

Crime

Intelligence

conducted

their

own

i n v e s t i g a t i o n , I t h i n k I a l s o h a v e t h o s e r e p o r t s . T h e y co n d u c t e d t h e i r o w n
investigation after the investigation they came back saying the situation
warrants that I be assigned with security. So, on the basis an d s t r e n g t h s
o f t h a t I h a d t o b e g i v e n s e c u r i t y.
10

I mea n th e bo d ygu ard s a nd t hen a t

h o m e t he s e c u r i t y g u a r d s . I would s a y i t w a s t h e D e p a r t me n t o f J u s t i c e i n
c o n j u n c t i o n w i t h N PA .
ADV WILLIAM NICHOLSON :

O k a y. A n d w h o g a v e t h e i n s t r u c t i o n t o v e r y

a b r u p tl y r e m o v e t h o s e s e c u r i t y m e a s u r e s ?
M R M L O T S H WA:

Ay the way I w a s – th e con ditio n I wa s in men t a l l y a n d

e m o t i o n a l a t t h e t i m e i n c l u d i n g m y fa m i l y I d i d n o t e v e n b o t h e r t o a s k
because I could feel that at the time I was swimming against the tidal
wave.
ADV WILLIAM NICHOLSON :

Ja.

But it may have been somebody from

e i t h e r t h e N PA o r t h e D e p a r t m e n t o f J u s t i c e ?
20

M R M L O T S H WA:

To d a t e I n e v e r …(i n te rve ne s ).

CHAIRPERSON :

But he does not know.

M R M L O T S H WA:

Even ask th e b o d y g u a r d s n o r t h e s e c u r i t y g u a r d s .

ADV WILLIAM NICHOLSON :

O k a y.

Yo u a l s o m e n t i o n, y o u r e f e r r e d t o

t he m e d i a r e p o r t s th a t s a i d t h a t y o u w e r e b u c k l i n g u n d e r p r e s s u r e , t h e
p r e s s u re y o u w e r e b u c k l i n g u n d e r, h a s i t r e l a t e d t o t h e n o r m a l w o r k t h a t

Page 72 of 77

27 FEBRUARY 2020 – DAY 220
y o u w e r e d o i n g i n t h e D P P ’s o ff i c e ?
CHAIRPERSON :

Well, first ask whether he was buckling under pressure

in the first place?
ADV WILLIAM NICHOLSON :
M R M L O T S H WA:

Are those reports correct?

You k now with m e d i a s o m e t i m e s ; i t i s d i ff i c u l t i f t h e y

h a v e n o t g i v e n y o u t h e f o u n d a t i o n u p o n w h i c h t h e y a r e ma k i n g t h e
a l l e g a t i o n . B u t t o c ut a l on g story sh ort th e p rosecu toria l jo b i s , i t c o m e s
with a lot of pressure as well. The He a d o f t h e Pros e c u t i o n i s w o r s e .

10

CHAIRPERSON :

Th ere c ert ain ly wa s p ressu re. I s th at correct ?

M R M L O T S H WA:

I f y ou lo o k a t th e p r o j e c t s t h a t w e r e i n t h e d e l i v e r y,

yes.
CHAIRPERSON :

Yes , there was pres s ure. But, are you able to say you

were able to handle the pressu re or are you saying that you were not able
t o handl e t he pres s ure?
M R M L O T S H WA:

I wi ll s ay I w a s a ble to han d le th e p ressu re.

CHAIRPERSON :

Yes . O k ay.

M R M L O T S H WA:

I f I w as n ot I wo uld h ave v o l u n t a r i l y …(i n t e r v e n e s).

CHAIRPERSON : Resigned
M R M L O T S HWA:
20

Came in and resigned.

ADV WILLIAM NICHOLSON :

So,

the

issues

that

le a d

you

to

be

hospitalized, the issues that lead you to miss the Comrades Marathon,
was that normal work pressure?
M R M L O T SHWA:

Not that I missed the Comrades. I said I ran agains t

t he – m y m e d i c a l p r a c t i t i o n e r s ’ a d v i c e . T h e i r v i e w w a s I s h o u l d n ’ t b u t I
d i d . S o , I t h i n k i t w a s w o r k r e l a t e d.

Page 73 of 77

27 FEBRUARY 2020 – DAY 220
ADV WILLIAM NICHOLSON :

Wa s i t n o r m a l w o r k p r e s s u r e ? Th at is t h e

q u e s t i o n I w a nt to ge t t o .
M R M L O T S H WA:

I wo uld sa y it w a s an a bn ormal p r e s s u r e .

ADV WILLIAM NICHOLSON :
M R M L O T S H WA:

Did you say abnormal pressure?

I wo uld sa y it wa s a bno rma l if it c u l m i n a t e s i n o n e

b e i n g s e e n b y t h e d o c t o r.
ADV WILLIAM NICHOLSON :

O k a y. N o w, ju s t t o w r a p u p y o u r e v i d e n c e ,

a f t e r s p e n d i n g n e a r l y a l l y o ur adult life as a career prosecutor and rising
t o t he rank s of Sen i or D eput y D PP an d in fact Act in g DPP, why d id y o u
10

join the Bar?
M R M L O T S H WA:

I n f act , w he n I picked up all the se p roble ms in 2 01 2 .

CHAIRPERSON :

Well, I guess the more appropriate questi o n i s , w h y d i d

y o u l e a v e t h e N PA ?
ADV WILLIAM NICHOLSON :

Why

did

you

leave

the

NPA

and

…(i n t e r v e n e s).
CHAIRPERSO N:

Where you went is might be neither here nor there. But

why did you leave the N PA after so many years?

20

M R M L O T S H WA:

I tho ug ht I ha d do n e e v e r y t h i n g i n t h e N PA .

CHAIRPERSON :

Yes . O k ay.

M R M L O T S H WA:

Fro m t he …(i n d i s t i n c t).

CHAIRPERSON :

I t w as f o r c a r e e r r e a s o n s . I t w a s f o r c a r e e r p u r p o s e s .

M R M L O T S H WA:

Th at i s t he p ositio n .

CHAIRPERSON :

J a , o k a y.

ADV WILLIAM NICHOLSON :

O k a y, an d a r e y o u a b l e t o g i v e n t h e f a c t

t he is s ue s th at w e deal t with in t he C at o Ma nor pro secut io n t he wa y

Page 74 of 77

27 FEBRUARY 2020 – DAY 220
p r o s e c u t o r s were being imposed into this province – i n t o y o u r p r o v i n c e ,
g i v e n t h e w a y c h a r g e s w ere withdrawn after you had left c a n w e d r a w a n y
c o n c l u s i on s f r o m y o u r n o l o n g e r a c t i n g a s a D P P ?

Can we draw any

conclusions from that?
CHAIRPERSON :

M a y b e d o n ’ t p u t i t li k e t h a t . A r e y o u a b l e t o t e l l u s w h y

you were asked to step down?
M R M L O T S H WA:

Chair, I would think that falls particularly within the

p ersonal knowledge of the people who recalled me.
CHAIRPERSON :
10

You, y ours elf are not able to s ay why y ou were not t o l d

a n d y o u h a v e n o t a n a l y s e d w h a t h a p p e n e d a n d c o m e t o a n y c o n cl u s i o n a s
t o w hy y o u we re as k ed t o ste p d ow n?
M R M L O T S H WA:

After I had step p e d d o w n I w a s a l s o l o o k i n g a t t h e

speculations including the timing of the withdrawals and so on and so
f or t h, t ha t pos s ibl y m y rec alling cou ld b e a tt ribut ed to t h at .
CHAIRPERSON :

Could be attributed to ?

M R M L O T S H W A: Th at the ma in re a son wh y I wa s re c a l l e d w a s t o m a k e
certain decisions.
CHAIRPERSON :

Yes . O k ay, alright. Thank y ou.

ADV WILLIAM NICHOLSON :
20

Chair, th o se we re my qu e stio n s f or t h i s

witness.
CHAIRPERSON :

Th ank y o u , M r M l o t s h w a f o r c o m i n g t o g i v e e v i d e n c e .

We appreciate it. But for no w, y o u a r e e x c u s e d . I f t h e r e i s a n e e d f o r u s
t o c al l y ou b ac k , we c all you back.

Bu t t han k you ver y mu ch, yo u a r e

excused.
M R M L O T S H W A:

Th ank you C ha ir.

Page 75 of 77

27 FEBRUARY 2020 – DAY 220
CHAIRPERSON : We are g o i n g t o a d j o u r n f o r t h e d a y. T h e r e w o u l d b e n o
h e a r i n g t o m o r r o w. T h e r e w ou l d b e n o h e a r i n g n e x t w e e k a s w e l l . B u t a s
t hi n gs s t and i t i s inte nded th at t he he arin g s sh ou ld resu m e on Wed n esd a y
t he week af t er ne x t w eek .
Th e v enu e f or the h ea rin g w ill no l o n g e r b e t h i s v e n u e b e y o n d t h e
e n d o f F e b r u a r y. T h e p l a n s a r e t h a t t h e h ea r i n g s w i l l b e h e l d i n t h e o l d
Chamber of the Johannesburg Municipality.

Arrangements are being

f i n a li se d but as I u n d e r s t a n d i t , i t i s j u s t t h e f o r m a l i t i e s .
In
10

s ubs ta nc e

an

agreement

has

been

reached

and

the

Commission for the rest of the year, its se a t i n g ’s w i l l b e i n t h e o l d
Chamber at the Johannesburg Municipality. So, but in due course there
will be a media s t at eme nt on ce all th e forma lities h as bee n finalised . We
a d j o u rn .
I NQ UI RY AD JOU RN S TO 11 MA RC H 2 0 20

20

Page 76 of 77

27 FEBRUARY 2020 – DAY 220
TRANSCRIBER’S CERTIFICATE FOR COMMISSION OF INQUIRY INTO STATE
CAPTURE
HELD AT
PARKTOWN, JOHANNESBURG

DATE HELD

: 2020-02-27

DAY:

: 220

TRANSCRIBERS

: B KLINE; M NETTA; D STANIFORTH;
B DODD; D BONTHUYS

Audio’s are typed verbatim, as far as audible/possible

Page 77 of 77