CRIMINAL COMPLAINT

AGAINST

VIDHU VEDALANKAR, FORMER CEO OF LEGAL AID SOUTH AFRICA

I, Anthony Brink, affirm:

1.    I am an adult male, 61, an advocate of the High Court of South Africa admitted to practice on 12 April 1983, and a former prosecutor and magistrate of the District and Regional Courts. My professional background includes several years as a full-time civil trial magistrate and civil litigation as an advocate in the Supreme Court of Appeal and Constitutional Court. I reside at 36 Pearson Street, Eshowe 3815, KwaZulu-Natal. My cellphone number is 083 779 4174 and my email address is anthonybrink.sa@gmail.com.

2.    The accused is Vidhu Vedalankar, formerly Chief Executive Officer (‘CEO’) of Legal Aid South Africa (‘LASA’). Her contact particulars are unknown to me now that she’s retired, but they can likely be obtained from LASA’s national office at 29 De Beer Street, Braamfontein, Johannesburg. The office telephone number of her successor, CEO Mantiti Kola, is 011 877 2000.

3.    The facts set out herein will show that on the various occasions mentioned, Vedalankar contravened the following statutory provisions, thereby committing the several serious statutory crimes they proscribe, on each count of which she’s liable to be jailed:

·      section 9 of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963, in lying in an affidavit sworn to be true before a commissioner of oaths;

·      section 17(2)(d) and (e) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004, in repeatedly lying, deceptively withholding critically relevant information, and falsely reporting on multiple occasions to the National Assembly’s Portfolio Committee on Justice and Correctional Services (as it’s now called; hereafter ‘the Portfolio Committee’);

·      section 55(1) read with section 86(2) of the Public Finance Management Act 1 of 1999 (‘PFMA’), in failing as delegated accounting officer to ‘keep full and proper records of the financial affairs of the public entity’, per the language of section 55(1) of that Act; and,

·      section 55(2) read with section 86(2) of the PFMA, in wilfully misrepresenting LASA’s ‘state of affairs’ in its ‘annual report’ for 2011/12 and ‘its business, its financial results, its performance against predetermined objectives and its financial position as at the end of the financial year concerned’, per the language of section 55(2) of that Act.

4.    The facts giving rise to these criminal charges against Vedalankar, referenced to supporting documents annexed hereto, are set out, in logical rather than strict chronological order, in the following paragraphs:

BACKGROUND

5.    On 12 November 2009, a duly constituted selection panel of LASA’s top lawyers in KwaZulu-Natal interviewed four shortlisted candidates for its two most senior legal professional posts in the province, its long vacant Senior Litigator posts at Pietermaritzburg and Durban. The recruitment processes for the simultaneously advertised posts were conducted in parallel.

6.    The posts had been created by resolution of LASA’s Board in November 2006 for the delivery of constitutional and other complex specialist litigation services to the indigent in the High Court, Supreme Court of Appeal, and Constitutional Court.

7.    One of the interviewed applicants was a former long-time judicial colleague of LASA’s Board chairperson at the time, Dunstan Mlambo JP (appointed head of the Labour and Labour Appeal Courts in 2010, and thereafter head of the North and South Gauteng Division of the High Court in 2013). Over a period of about six years prior to the interviews, the two had served together on the Labour Court bench – the said interviewed candidate repeatedly appointed as an acting judge of that court, as well as of the KwaZulu-Natal Division of the High Court. In April 2007, however, the Judicial Service Commission (‘JSC’) had rejected his application for a permanent appointment on account of his failure to have disclosed to the then Judge President of the said Division his two convictions by the Law Society regarding the irregular conduct of his practice as an attorney, and the fact that it had instituted legal proceedings against him (per News24 report, ‘Past misconduct haunts judge’, 14 April 2007).

8.    Notwithstanding his many years of legal professional experience, even as an acting judge of the Labour- and High Courts, the selection panel duly disqualified and rejected his application for appointment as a Senior Litigator for the reason that he lacked right of appearance in the High Court as an attorney and accordingly had no litigation experience on his feet there, and for this reason didn’t meet the basic qualifying criteria for the post.

9.    The selection panel duly recommended me for the Pietermaritzburg post for which I’d applied; and duly recommended the High Court Unit Manager at LASA’s Durban Justice Centre for promotion to the Durban one.

10.   After my successful interview in November 2009, the recruitment process went strangely silently dead; my enquiries of Human Resources Executive Amanda Clark five months later in April 2010 were repulsed with shockingly hostile, transparently dishonest stonewalling; and my repeated requests for access to LASA’s public records under section 18 of the Promotion of Access to Information Act 2 of 2000 (‘PAIA’), duly made in my investigation of the obvious irregularity in the peculiar halting of the recruitment process, were persistently furtively refused on obviously spurious, shifting, even fraudulent grounds, all ultimately abandoned under South African Human Rights Commission (‘SAHRC’) pressure and later at the point of multiple legal processes brought to disgorge the persistently withheld records that I’d duly requested. (LASA’s repeatedly illegal and unconstitutional suppression of requested records is closely detailed in a Special Report to the PAIA Unit of the SAHRC that I filed in late 2016, accessible online at illegal‑aid.co.za/PAIA.

11.   Multiple dishonestly false, radically divergent, contradictory, and mutually exclusive and destructive justifications were eventually advanced by LASA’s top officers over time for the abortion of my recruitment, some of which form the subject of this criminal complaint.

12.   Repeatedly requested since August 2010, but repeatedly illegally and unconstitutionally refused, I eventually in April 2016 succeeded in clawing out of LASA, by suing for it under section 78 of PAIA, the selection panel’s full, unredacted recommendation report delivered to National Operations Executive Brian Nair on 26 November 2009. My claim to this critical document was indefensibly opposed all the way to court, at which point, moments before argument, LASA totally capitulated, abandoned all its defences, and agreed to surrender it, along with all other requested documents I’d sued for, and to certify under section 23 any specified documents that didn’t exist.

13.   The selection panel’s full recommendation report, which LASA’s national executives had been so strangely reluctant to let me see, revealed at last the said rejected candidate’s professional connection with Board chairperson Mlambo JP, and finally made sense of: (i) the peculiar, unauthorised, unrecorded back-room gerrymandering of the qualifying criteria for the post by doubling the High Court experience requirement – but only for the readvertised KwaZulu-Natal posts (for the reason mentioned above, Mlambo JP’s colleague still didn’t meet them); (ii) LASA’s oddly irregular failure to inform Mlambo JP’s colleague that his application for the post had been unsuccessful, as required by section 1.5.1 of LASA’s ‘Policies and Procedures on Recruitment, Induction, Probation and Relocation’ (‘Recruitment code’); (iii) the odd fact that, unlike the three other interviewed candidates, Mlambo JP’s colleague wasn’t also told by letter in August 2010 that the KwaZulu-Natal Senior Litigator recruitment process had been cancelled; and (iv) the fact that he was soon afterwards appointed other posts in LASA, the last of which was at the Durban Justice Centre, likely in anticipation of being slipped into the Senior Litigator post after he’d obtained right of appearance and litigated a case or two in the High Court to get the necessary experience for the post.

14.   LASA’s national office was clumsily candid about its expectation that if kept waiting in the dark long enough, I’d lose interest in pursuing my appointment to the post and abandon my application for it. Quoted below, in April 2010 HRE Clark actually proposed I withdraw my candidacy, after backhandedly confirming I’d been selected and recommended; and in mid-2013 at the trial of my miscarried labour claim (explained just below), I was actually asked why I hadn’t concluded from the long silence after my interview that I’d been unsuccessful and walked away.

15.   Unfortunately for me the long-suppressed, crucially informative record of the selection panel’s Senior Litigator candidate recommendations, with its summaries of each applicant’s professional experience – including that of my rival contender for the post – came to light five years too late. Deliberately kept unaware of Mlambo JP’s special relationship with his unsuccessful colleague on the shortlist, I wrongly surmised covert unfair discrimination as the reason I wasn’t appointed to the post, and sued in the Labour Court for my instatement on that mistaken ground. And in the result my fundamentally misconceived claim was correctly dismissed.

16.   It bears mentioning here that besides Vedalankar’s lying on oath and her repeated, routine lying and dishonestly false reporting to the Portfolio Committee detailed herein, among other her crimes, the extraordinary criminal depravity in LASA’s top ranks extends even to the perversion of judicial proceedings. My complaint pending before the JSC’s Judicial Conduct Committee (‘JCC’) against Labour- and Labour Appeal Courts head Basheer Waglay JP – Mlambo JP’s successor, and former long-time deputy – details how he was slipped a poisonously prejudicial ‘memorandum’ by some obviously well connected, highly motivated top LASA officer to improperly influence his decision of my petition for leave to appeal the dismissal of my labour claim (before I discovered years later that the actual impediment to my appointment was not unfair discrimination but everyday recruitment corruption in the form of cronyism). Supported by a copy of this ‘memorandum’ inadvertently left in and later found in the court file, my complaint to the JSC’s JCC regarding this brazen act of defeating the ends of justice by the obviously well connected top LASA officer, highly motivated to torpedo my appeal behind the scenes, is accessible online at illegal‑aid.co.za/JSC.

17.   For the purpose of this criminal complaint, though, it’s unnecessary to show that top-level recruitment corruption and its cover-up was the true reason why the Senior Litigator recruitments for Pietermaritzburg and Durban, and later Mthatha, were aborted and why the budgeted and funded vacant posts were left unfilled (still are, illegally; see below). In other words, it’s unnecessary for present purposes to show that the reason Vedalankar (i) made no record of the final backroom abortion of the posts and of the decision to keep them unfilled; (ii) lied on affidavit about it; and (iii) repeatedly lied and falsely reported to the Portfolio Committee, as charged herein, was to cover recruitment corruption and the repeated illegal and unconstitutional rejections of my PAIA requests made to investigate it – just that she lied (some lies radically contradictory). In a word, why the said three Senior Litigator appointments were cancelled – top-level recruitment corruption and its cover-up – is a not a police matter.

18.   Not material to this complaint either is Mlambo JP’s role in the criminal cover-up – the subject of eight gross misconduct complaints against him currently pending before the JCC, two of which charge such crimes as suborning perjury and falsely reporting to the Portfolio Committee to pervert a parliamentary enquiry. My complaints, his response and my invited comments on it, as well as a record of the Chief Justice’s office’s urgent, after‑hours request in February 2020 for copies, prompted by my letter to him at the end of last year, are all accessible at illegal‑aid.co.za/JSC.

19.    The illegal, off-the-record abortion of the recruitments, and the illegal deliberate failure since 2006 – for about fourteen years now – to fill LASA’s three remaining vacant Senior Litigator posts and to duly apply the budgeted, approved, voted, transferred and received salary funding for them by employing suitable staff to fill them, was and continues year after year to be ipso facto illegal under section 53(4) of the PFMA, as the Constitutional Court confirmed in paragraphs 8 and 9 of Sibongile Zungu v Premier of the Province of KwaZulu-Natal and Others [2018] ZACC 1 (22 January 2018), quite irrespective of the several completely different, radically contradictory lies told over time about why the substantially complete recruitments were aborted and the budgeted and funded posts frozen. These contraventions of the PFMA and other material irregularities within the contemplation of sections 1 and 5(1A) of the Public Audit Act 25 of 2004 – illegal but not criminal – are currently being investigated by the Auditor-General’s Investigation unit, to which it was referred by his corporate counsel after advising that she’d duly ‘studied’ it to report on it to the Auditor-General. A copy of my complaint about this is accessible online at illegal‑aid.co.za/AG.

20.    For relevance to the charges, all ellipses in statutory provisions quoted herein are mine. My inverted commas signify direct quotation only, not irony, scepticism or derision. Where for concision I’ve put up material excerpts of supporting documents, I can supply most of the complete documents if required, failing which LASA will have them. For quick and easy reference, I’ve marked up material passages in the annexed supporting documents. For the same reason, I’ve continued the serial page-numbering of this affidavit (pages 1–82) on the annexures (pages 83–433), which, due to their multitude (75), I’ve numbered rather than allocated letters in the usual convention. For easy copying and electronic transmission, a scanned copy of this criminal complaint and its annexures will be made available online at illegal-aid.co.za/NPA.

COUNT 1: LYING IN AN AFFIDAVIT

21.    Section 9 of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 provides:

Any person who, in an affidavit, affirmation or solemn or attested declaration made before a person competent to administer an oath or affirmation to take the declaration in question, has made a false statement knowing it to be false, shall be guilty of an offence and liable upon conviction to the penalties prescribed by law for the offence of perjury.

22.    In R v Samuels 1930 CPD 67 at 71, the High Court emphasized that ‘perjury is a very serious crime’.

23.    On 5 April 2011, Vedalankar deposed to an affidavit before a commissioner of oaths in which she confirmed to be true all allegations pertaining to her made by LASA deputy information officer Nair in his affidavit made under section 23 of PAIA, certifying that certain records I’d requested under section 18 of that Act don’t exist.

24.   Copies of Nair’s and Vedalankar’s affidavits are annexed, marked ‘1’ and ‘2’ respectively.

25.   Essaying into matters beyond the specific information requirements of section 23 of PAIA, Nair’s affidavit included bold allegations under oath that were clearly calculated to finally put me off my investigation of the true reason my recruitment had been cancelled.

26.   Nair’s and Vedalankar’s affidavits were delivered to me together. A further confirmatory affidavit by HRE Clark was delivered at the same time, but I’ve not put it up because it’s immaterial to this complaint and will be the subject of a separate criminal complaint against her.

27.   Nair’s affidavit is dated 8 April 2011, three days after Vedalankar’s, which suggests she confirmed the contents of Nair’s draft affidavit before it was signed. There’s no question, however, that in making her affidavit Vedalankar meant to confirm under oath the allegations she’d made in her earlier correspondence with me, to which Nair pertinently referred in his affidavit.

28.   In his paragraphs 8–12, Nair describes a system he’d devised in terms of which an applicant recommended by a selection panel for a Senior Litigator post would be subject to a second interview by inter alia LASA’s Board chairperson. Consistent with this double-decker interview system he’d improvised, the selection panel that interviewed me framed its recommendation of me as a ‘Recommendation for next round of interviews’. Having regard to LASA’s internal regulations precisely governing selection and approval procedure for shortlisted applicants for advertised vacant posts, namely its Recruitment code and its Approval Framework, Nair’s second round interview scheme, at odds with both these regulations, was obviously illegal in flouting one of the Constitution’s ‘Founding Provisions’, namely ‘the rule of law’ stipulated in section 1(c). Although this illegality is irrelevant to this complaint, the de facto existence of Nair’s unauthorised second interview scheme is relevant to setting the factual backdrop to his centrally material allegations in his paragraph 13, which in her confirmatory affidavit Vedalankar corroborated under penalty of perjury as the perfect truth.

29.   In his paragraph 13, Nair alleged:

The second round of interviews was not proceeded with and as such, no candidate or persons were considered for the second round. The decision that led us not to proceed with the second round was fully explained to Mr. Brink in the letters by the Chief Executive Officer dated 18 October 2010 and 28 January 2011.

30.   Now indeed ‘The second round of interviews was not proceeded with and as such, no candidate or persons were considered for the second round.’ And the reason for this is that my ‘recruitment was aborted immediately after the first round of interviews’ – so Nair himself confirmed on oath, corroborating this very true statement by then Legal Executive Thembile Mtati. Material excerpts of Mtati’s affidavit (see paragraphs 13.4 and 107) and Nair’s confirmatory affidavit are annexed marked ‘3’ and ‘4’ respectively.

31.   Evidently the wrong name came up as the selected and recommend candidate for the Pietermaritzburg post, i.e. mine, not the Board chairperson’s friend’s, because on learning this, Nair strangely gave ‘instructions ... telephonically’ that the CVs of all the interviewed candidates be sent up to him including those of the ‘two persons ... eliminated early in the selection process and not recommended for the second round of interviews’.

32.   A material excerpt of an affidavit by Mtati mentioning Nair’s ‘instructions ... done telephonically’ to send him all four CVs (see Part 2, document 11, paragraph 27) is annexed marked ‘5’. Nair’s mention of it in his evidence in my labour case is recorded in the transcript (page 349, lines 20–1), a material excerpt of which is annexed marked ‘6’. LASA’s truthful pleading about the selection panel’s rejection of the two unsuccessful candidates for the KwaZulu‑Natal Senior Litigator posts appears in its answer to my pre-trial conference agenda (see paragraph 34.2), material excerpts of which are annexed marked ‘7’.

33.   Consistent with the peculiar redundancy in Nair’s letter (my added italics for emphasis) – ‘no candidate or persons were considered for the second round’ – he later gave the game away in my labour action when testifying that in deciding who to appoint, LASA wasn’t limited to considering the candidate recommended by the selection panel; he and his colleagues (the so-called second round interview panel) were free to consider any shortlisted and interviewed applicants for appointment, including a person rejected by the selection panel: ‘all four were interviewed ... their CVs were sent to me. Because in deciding who will be in [the] interview for the second round, we look at all four again and not only the person that the first round panellist[s] interviewed or recommended’; the second round panel ‘is free to make the decision it wants to make and to interview whoever it wants to interview’; ‘we do not only interview the recommended candidates’; ‘the panel does not confine itself to only the person that is recommended. The panel, as in the past, [sic: has in the past] requested to see other candidates who were interviewed’. (Annexure ‘6’, original pages 349, 350, and 408–10.)

34.   As said, immediately after my recommendation, the Pietermaritzburg and Durban Senior Litigator recruitment processes were stopped – but only those; other Senior Litigator recruitments continued.

35.   LASA has nine Senior Litigator posts in its staff establishment, based at Pretoria, Port Elizabeth, Cape Town, Johannesburg, Bloemfontein, Mahikeng, Durban, Pietermaritzburg, and Kimberley (transferred to Mthatha, then back; see below). These nine centres are identified in the original advertisement for the posts, annexed marked ‘8’. Showing the same, LASA’s Senior Litigator personnel statistics in March 2012 are annexed marked ‘9’.

36.   The candidates recommended by selection panels for the Senior Litigator posts at Johannesburg, Pretoria, Cape Town and Port Elizabeth were approved on 5 December 2008, and the posts filled. The record of these four candidates’ approval is annexed marked ‘10’.

37.   This left five of LASA’s nine Senior Litigator posts unfilled: at Bloemfontein, Mahikeng, Kimberley, Durban and Pietermaritzburg.

38.   LASA’s budget for 2010/11 dated ‘February 2010’ shows that five Senior Litigator posts were still vacant in that month. A material excerpt of this budget is annexed marked ‘11’. This means that by February 2010, in addition to the Pietermaritzburg and Durban posts, the Bloemfontein, Mahikeng and Kimberley posts still hadn’t been filled.

39.   Sometime in the period March to June 2010, several months after my recommendation and then the ‘immediate’ abortion of my recruitment in November 2009 (as Mtati and Nair revealed on oath), appointments were made to the Bloemfontein and Mahikeng Senior Litigator posts. The June 2010 Senior Litigator recruitment statistics show the Mahikeng and Bloemfontein posts had been filled by that month. These statistics are annexed marked ‘12’.

40.   And in March 2010, four oddly silent months after my successful interview, LASA’s Legal Services Technical Committee (‘LSTC’) chaired by Nair resolved to abolish the Kimberley Senior Litigator post and create a new such post at Mthatha, and directed the Regional Operations Executive to ‘immediately commence recruitment’ for it; and it was immediately advertised in April, and interviewed for in May, following which a suitable candidate for it was selected and recommended.

41.   The LSTC’s resolution to create the Mthatha post (see section 4.1.7); the advertisement for it; and the selection panel’s candidate recommendation for it are annexed marked ‘13’ ‘14’, and ‘15’ respectively.

42.   To obstruct my corruption investigation, to maintain the cover-up, and to protect his delinquent colleagues and himself from being taken to law and held to account, LASA Chief Legal Executive Patrick Hundermark is illegally and unconstitutionally blocking my duly made request for access to the records of the Bloemfontein and Mahikeng Senior Litigator appointments, to prevent me ascertaining the exact dates on which these appointments were made in the period March to June 2010 (fundamentally inconsistent with and destructive of the lying cover-story I was told; see below). And also because Hundermark knows, as I do directly from the chairperson of the selection panel that interviewed for the Mahikeng post, that the selection panel’s recommended candidate was illegally passed over and a rejected candidate illegally appointed instead. The appointee to the Bloemfontein post wasn’t the recommended candidate either, because the record (annexure ‘10’) shows that the candidate identified by the selection panel wasn’t approved by the so-called second round interview panel. Again, a different person was appointed instead.

43.   The filling of the Mahikeng and Bloemfontein posts in the period March to June 2010 and the brisk recruitment for the Mthatha post in the period March to May 2010 show unequivocally that nothing lawful hindered the finalisation of my appointment pursuant to my successful interview in November 2009.

44.   In her affidavit, Vedalankar stated:

                    ...

2.     The facts which are herein so confirmed are to my knowledge true and correct save where the converse so appears and is so expressly stated.

3.     I have read the affidavit of Mr Brian Nair and agree with and confirm the contents insofar as they apply to me.

45.   In sum, Vedalankar confirmed, on pain of being jailed for lying under oath, that, as Nair’s affidavit put it, the ‘second round was not proceeded with’ after my recommendation for the Pietermaritzburg Senior Litigator post for the reason stated in her letters to me ‘dated 18 October 2010 and 28 January 2011’.

46.   It was in those two letters, Vedalankar swore, that the abortion of my recruitment was ‘fully explained’ and the reason for the ‘decision’ could be found.

47.   Copies of Vedalankar’s October 2010 and January 2011 letters are annexed marked ‘16 and ‘17’ respectively.

48.   Paragraph 6.7 of Vedalankar’s October 2010 letter indeed ‘fully explained’ the abortion of my recruitment (discussed below, it was the first of her different, radically contradictory lying explanations):

Due to the effects of the recession, anticipated funding for the 2010/11 financial year did not materialise. This had the effect of cutting our baseline funding by a significant amount. It was accepted that this required a reduction to our staff establishment in the 2010/11 financial year in order to meet this shortfall. Since early this year, management has had to identify positions which could be frozen. In July 2010 the NOE and CEO took the decision that all senior litigator posts that were vacant would be immediately frozen.

49.   Nearly all these allegations are demonstrably false. Where one of them had been partly true earlier in the year, albeit irrelevant to the cancellation of my recruitment (unauthorised and unrecorded; see below), it was no longer true when Vedalankar wrote to me, and was in any event no basis for not finalising my appointment as she pretended. Sandwiched between all her other outright lies, Vedalankar’s once partly but no longer true allegation – in the context substantially false, and anyway irrelevant – that some ‘anticipated funding’ (for salary increases, not for salaries for budgeted posts) had not been received (yet), will be dealt with below.

50.   Read as a whole, Vedalankar audacious, smooth, mellifluous, and convincing-sounding explanation to me, confirmed under oath in April 2011 as true, was calculated to induce me to understand that LASA couldn’t afford to employ me in the post for which I’d been recommended because it hadn’t received the salary budget it was expecting for this and therefore didn’t have the funds to do so.

51.   This financial insufficiency explanation was a blatant lie; and indeed, dealt with below, Vedalankar would later diametrically contradict it by telling the Portfolio Committee totally different, fundamentally inconsistent new lies.

52.   In a cogent pointer to the provenance of this false financial insufficiency story, Hundermark persisted with it in affidavits of his own – even after Vedalankar and Nair had abandoned it and made up and told new stories (dealt with below).

53.   The following facts unequivocally show Vedalankar’s initial financial insufficiency explanation for the abortion of my recruitment, which she confirmed on affidavit in April 2011, to have been dishonestly false.

Ad: ‘Due to the effects of the recession, anticipated funding for the 2010/11 financial year did not materialise. This had the effect of cutting our baseline funding by a significant amount.’

54.   In truth and in fact, the global ‘recession’ of 2008 had zero bearing on how much funding the National Assembly allocated LASA and what the Treasury paid it ‘for the 2010/11 financial year’. Quite the opposite, LASA’s funding increased in 2010/11 over the year before, from R848.4 million to R991.9 million, as appears from ‘The Budgetary Review and Recommendation Report of the Portfolio Committee on Justice and Constitutional Development on the performance of the Department of Justice and Constitutional Development for the 2009/10 financial year, dated 26 October 2010’. I annex the first (identifying) and tenth (relevant) pages of the report, marked ‘18’. (The said Department, now called the Department of Justice and Correctional Services, will hereafter be referred to as ‘the Department’, and its responsible minister as ‘the Minister’.)

55.   Vedalankar’s dishonestly irrelevant reference to ‘the recession’ aptly introduced the rest of her lies, all spun and woven with impressive criminal imagination, ingenuity and intelligence in the characteristically mendacious easy patter of the confident, practised, habitual liar – cunningly working in plenty of false detail to sound convincing, to conceal the truth, and to lend credence to her fake financial explanation given me for why I was not appointed to the top legal professional post for which I’d been duly selected and recommended, instead of my rival applicant for the position, Board chairperson Mlambo JP’s long-time judicial colleague.

56.   Vedalankar’s mention of ‘anticipated funding [that] did not materialise’ fraudulently implied to me that LASA’s budget application for 2010/11, and for Senior Litigator salaries in particular (i) drawn by LASA under section 53(1) of the PFMA; (ii) submitted to and approved by the Minister on the advice of the Department’s accounting officer under section 53(2); and (iii) voted by the National Assembly, was not fully paid by the Treasury via the Department’s Third Party Funds division, and that LASA didn’t receive all of it.

57.   Contrary to Vedalankar’s lie to me about this, LASA received its entire operating budget, including its salary budget for all nine of its Senior Litigator posts, six filled and three vacant. Like all its other recruitment statistics do, those for December 2010, for instance, show all nine posts budgeted for, six of them filled, three of them vacant. These statistics are annexed marked ‘19’.

58.   (They also show that by December, the Mthatha post (the second Senior Litigator post created for the Eastern Cape region) had disappeared from LASA’s books and that Kimberley (the second Senior Litigator post for the Western Cape and Northern Cape region) was back on them, and was reported as budgeted and vacant – whereas the June 2010 statistics (annexure ‘12’) shows the new Mthatha post budgeted and vacant, with the Kimberley post gone.)

59.   This is why nowhere in any report by LASA to the Portfolio Committee during or for 2010/11; nowhere in any minute of any appearance before, and presentation to, the Portfolio Committee by Vedalankar or other LASA officer in April and October 2010; nowhere in the records of any meetings of LASA’s Legal Services Technical Committee and/or Board in 2010 – nowhere in any of these was it ever alleged and recorded that LASA hadn’t received all its expected baseline operating budget for 2010/11. Even less was there any complaint, mention or suggestion in any of these records that LASA lacked the funds to fill its remaining three budgeted and funded, long-vacant, critical Senior Litigator posts.

60.   It’s common cause that these positions at the apex of LASA’s legal professional ranks are ‘critical’, in that LASA has both described and admitted them as such in its legal pleadings. Material excerpts from its original response to my labour claim (see paragraph 48.9) is annexed marked ‘20’. An excerpt from my pre-trial agenda stating facts for admission before trial (see facts 58 and 59) is annexed marked ‘21’, and an excerpt from LASA’s answer to it admitting these facts (see paragraph 52.1), is annexed marked ‘22’.

61.   Far from claiming that LASA lacked the budget to fill its remaining one third vacant Senior Litigator posts, Vedalankar twice alleged to the Portfolio Committee in her CEO report for 2011/12 that LASA had employed Senior Litigators as a key achievement in fulfilling and completing its Strategic Plan 2009–12; and in its ‘Report on Completion of Strategic Plan 2009–12’ presented at the same meeting, LASA alleged this a third time. (This will be dealt with below.) There was nothing said in these reports about LASA not being able to fill one third of its Senior Litigator positions because the budget for their salaries hadn’t been provided. And the reason for this is that in truth and in fact it was provided, and Vedalankar’s claim to me to the contrary, confirmed on oath, was a lie.

62.   The only ‘anticipated funding that did not materialise’ for a while in 2010 – but only to the extent that, like the year before, it wasn’t received at the same time as LASA’s budgeted, approved and allocated baseline funding – was additional funding to pay salary increases for legal professionals under phase 1 of the OSD scheme to financially incentivise the retention of lawyers in the public service. Vedalankar raised this in her letter to the Director-General of the Department on 18 March 2010 and again on 13 April 2010. Her letters are annexures ‘17-V3’ and ‘17-V4’ respectively.

63.   Given that LASA had commenced implementing phase 1 of the OSD scheme in expectation of this funding, which it had started receiving the year before, and was accordingly paying increased salaries under the scheme, the non-inclusion of OSD phase 1 funding in LASA’s baseline budget indeed threatened to drive LASA into deficit. LASA executive management’s Report to Board of July 2010 (annexure ‘17-V10- Annexure 1’) records, however, (in paragraph 1.3) that the Minister assured the Board chairperson that this extra OSD funding would be provided for in the national mid‑term budget. And indeed it was; and it was transferred to LASA a couple of months later, well before the end of the financial year.

64.   Inclusion of this extra OSD provision in the mid-term budget in October 2010 is reflected in then Finance Minister Pravin Gordhan’s ‘Medium Term Budget Policy Statement 2010’ of 27 October 2010, issued by the Treasury. Material excerpts are annexed marked ‘23’.

65.   In its report, ‘Adjusted Estimates of National Expenditure 2010’, issued in October 2010, the Treasury confirmed: ‘An additional R96 million is allocated for phase 2 of the occupation specific dispensation for legally qualified professionals at Legal Aid South Africa.’ That is, the Treasury allocated OSD funding for phase 2 of the scheme as well. Material excerpts of this document are annexed marked ‘24’.

66.   On 15 December 2010 LASA received R89 435 000 to cover both its outstanding OSD phase 1 funding as well as funding to implement OSD phase 2. The Department’s payment voucher reflecting this is annexed marked ‘25’.

67.   Far from not having received sufficient funding from the Treasury via the Department (i) to employ me in the Pietermaritzburg Senior Litigator post; (ii) to promote LASA’s Durban High Court Unit Manager to the Durban post (entailing a slight increase in salary expenditure, from one pay grade to the next); and (iii) to transfer the incumbent Mahikeng Senior Litigator to the Mthatha post for which he’d applied to get closer to his home at Bizana (entailing no increase in salary expenditure), in truth and in fact LASA had all the salary funding it needed.

68.   In fact, more than it needed. In 2010/11, the year in which Vedalankar claimed to me (but not to the Portfolio Committee; see below) that LASA couldn’t afford to fill its three remaining critical Senior Litigator posts, LASA reported a substantial surplus from operations of R10.8 million, which, added to interest and other income, such as from the sale of assets, gave LASA a total surplus of R31.7 million. The 2010/11 surplus raised LASA’s accumulated surplus to R194 million. A material excerpt of LASA’s annual report for 2010/11, giving these figures, is annexed marked ‘26’.

69.   Some of this unspent surplus comprised LASA’s salary budget received but unlawfully not spent on filling the three remaining vacant budgeted and funded Senior Litigator posts with the candidates recommended for them, i.e. illegal unauthorised expenditure.

70.   Nowhere in its annual report for 2010/11 did LASA claim or suggest that the separate, later payment of OSD phase 1 funding affected LASA’s financial ability to employ Senior Litigators for its remaining long vacant posts, or indeed to employ staff in any other posts. In fact, the transient uncertainty over OSD funding for 2010/11 was so considered insignificant that it didn’t even merit a passing mention in the annual report. Quite the contrary, as already said, in her CEO report for 2011/12, Vedalankar twice falsely claimed that Senior Litigators had been employed in successful completion of a key component of LASA’s Strategic Plan 2009–12, and LASA’s Report on Completion of the Strategic Plan repeated this false claim a third time – whereas in truth and in fact, one third of LASA’s critical top-level Senior Litigator posts remained vacant. (This is dealt with below.)

71.   Contrary to Vedalankar’s lie to me about this, LASA’s ‘baseline funding’ wasn’t ‘cut’ by any ‘significant amount’ or at all; instead it increased, as mentioned above. This is why there was no complaint, no suggestion at all in LASA’s said annual report or at LASA’s presentation of it that ‘anticipated funding ... did not materialise’, and that this had ‘had the effect of cutting our baseline funding by a significant amount’, preventing LASA from filling its three remaining vacant Senior Litigator posts with the suitably qualified and experienced candidates selected and recommended for them.

72.   Moreover, by the time Vedalankar wrote to me on 18 October 2010, LASA’s OSD phase 1 funding had been securely settled in the national mid-term budget and was on its way – as Vedalankar had just informed the Portfolio Committee at her presentation on the 12th a week earlier. ‘So we don’t have any problem areas that I would like to report on.’ (I deal with this below.)

73.   To tell me then, as Vedalankar did, that ‘anticipated funding ... did not materialise’ – deceptively concealing from me that this extra funding (for salary increases, not basic salary budget) had been provided for in the mid-term budget and therefore was about to ‘materialise’ – was grossly dishonest.

74.   Discussed below, Vedalankar compounded this dishonesty in her January 2011 letter, and then falsely confirmed it in her April 2011 affidavit, then changed the story completely before the Portfolio Committee.

Ad: ‘It was accepted that this required a reduction to our staff establishment in the 2010/11 financial year in order to meet this shortfall. Since early this year, management has had to identify positions which could be frozen. In July 2010 the NOE and CEO took the decision that all senior litigator posts that were vacant would be immediately frozen.’

75.   Contrary to Vedalankar’s lie to me about this, it was never accepted that LASA’s staff establishment needed to be reduced in 2010/11 for lack of budget to fill its vacant posts or for any other reason, and it never was. Quite the opposite, LASA’s ‘staff establishment’ massively increased ‘in the 2010/11 financial year’. In the 2010/11 first quarter alone, right after Vedalankar’s letters to the Director-General enquiring about LASA’s OSD funding, the number of budgeted establishment posts increased by a massive 3.3%.

76.   Following a nil nett increase (more resignations than recruitments) in the third quarter September to December 2009 (1136 to 1129) and a 1.6% increase in the fourth quarter January to March 2010 (1129 to 1147), legal staff recruitment at LASA spiked in the first quarter April to June 2010 at 2.3% (1147 to 1173). In the same period, total staff recruitment increased by 3.5% (2352 to 2434). This sharp rise of 3.5% in total staff recruitment in the first quarter April to June 2010 was greater than the increase of 3.1% (2281 to 2352) for the whole of 2009/10.

77.   Drawn from LASA’s records, and admitted before the trial of my labour claim, a table of these collected figures is annexed marked ‘27’.

78.    On 14 April 2010, Vedalankar, Nair and Board chairperson Mlambo JP appeared before the Portfolio Committee to present LASA’s Budget for 2010/11 and Strategic Plan 2009–12. The minute of the meeting is annexed marked ‘28’. Although by the date of this meeting Vedalankar had twice written to the Director-General to raise the issue of OSD funding (annexures ‘17-V3’ and ‘17‑V4’), the minute shows that at no point did Vedalankar, Nair or Mlambo JP say or suggest that LASA wouldn’t be able to fulfil its Strategic Plan 2009–12 by employing Senior Litigators in its remaining vacant posts, because it hadn’t received the funds it had budgeted for this. Five months after the successful Pietermaritzburg and Durban Senior Litigator interviews on 12 November 2009, nowhere did Vedalankar, Nair, or Mlambo JP claim to the Portfolio Committee that LASA couldn’t afford to appoint the recommended candidates. Instead, Vedalankar professed to be concerned ‘to ensure there was delivery of quality legal services’, implying that such ‘quality legal services’ (especially Constitutional and other complex litigation services) were indeed being delivered.

79.   And the reason Vedalankar and the others didn’t claim this to the Portfolio Committee (that LASA couldn’t afford to fill its three remaining vacant Senior Litigator posts) as she would falsely claim to me a few months later in October 2010 (annexure ‘16’), is because it wasn’t true. Indeed, with respect to Senior Litigator recruitment, LASA’s records mentioned above show that as at February 2010 the Bloemfontein and Mahikeng posts were still vacant, and had afterwards been filled by June 2010, while the Pietermaritzburg and Durban Senior Litigator recruitments, substantially complete by November 2009, had strangely stalled – silently in my case, whereas ‘in April/May’ the candidate for the Durban post was told (as LASA later formally admitted) that the recruitment had been cancelled, no reason given him; so he told me on the telephone, saying he assumed the reason to have been ‘internal restructuring’ (incorrect; there wasn’t any). And whereas my recruitment had been blocked, and with it the promotion of the internal candidate for the Durban post, the Mthatha Senior Litigator process proceeded apace, with the decision to create the post taken in March 2010, advertisement of it in April, and a selection and recommendation made in May.

80.   It was only on 15 July 2010 – after mid-year, not ‘early this year’ as Vedalankar dishonestly alleged to me – that ‘management’ began ‘to identify positions which could be frozen’; and these ‘positions which could be frozen’ were some non-critical, entry-level, bottom-rung, vacant public defender posts serving the district and regional criminal courts, and, if necessary, some even lower para-legal and administrative posts.

81.   LASA’s own records show categorically that the ‘positions which could be frozen’ until the OSD issue had been resolved, which ‘management’ began in mid-July 2010 ‘to identify’, didn’t include critical positions such as Senior Litigator posts.

82.   Nair’s proposal to his fellow executives on the Management Executive Committee in July 2010 to halt recruitment to these lower criminal court posts –to spur the Department into seeing to LASA’s OSD funding, as he later frankly testified – is annexure ‘17-V5’. The Management Executive Committee’s ‘Report to Board’ on 16 July 2010 (annexure ‘17-V10-Annexure 1’) reflects their agreement with Nair’s proposal – but as a temporary expedient only, as paragraphs 2.2.(a) and 4.II show.

83.   Crucially, paragraph 2.2(b) of the ‘Report to Board’ distinguished ‘critical’ posts from the non‑critical public defender posts to be frozen, and noted the need to ‘prioritise critical positions’ for recruitment.

84.   The Board’s resolution to adopt this proposal, including ‘to prioritise critical positions’ for filling, is annexure ‘17-V10’.

85.   So contrary to Vedalankar’s lies to me about this, falsely confirmed on oath in April 2011, these records show that executive management never proposed and the Board never approved, the indefinite, and in the result permanent freezing of recruitment to LASA’s three remaining vacant, budgeted and funded, critical Senior Litigator posts, for which suitable candidates had already been selected and recommended. (Indeed, this would have been illegal under section 53(4) the PFMA.)

86.   On 28 January 2011, Vedalankar wrote me her second letter (annexure ‘17’) following my second appeal to the PAIA Unit of the South African Human Rights Commission (‘SAHRC’) for its support under section 83(3) of PAIA in getting her to comply with my PAIA request of August 2010, which in her October 2010 letter she’d now expressly totally refused. (I’d made my first appeal to the SAHRC by telephone in September 2010 after she illegally ignored my August request, deemed a tacit refusal by section 27 of PAIA.)

87.   In her January 2011 letter, contemptuous of the public information transparency provisions of the Constitution, viz. section 32(1)(a) of the Bill of Rights, and of her obligations as information officer imposed by PAIA, Vedalankar yet again refused, now on new, different grounds, to comply with my August records request probing the circumstances in which my recruitment had been aborted.

88.   Vedalankar likewise totally refused my second request made in December 2010, with which I was testing the allegations she’d made in her October 2010 letter, on the manifestly false basis that it merely ‘repeat[ed]’ my first request in August 2010.

89.   Vedalankar’s persistent illegal and unconstitutional refusals of my August and December requests were ultimately reversed under further SAHRC and subsequent litigation pressure. In April 2011, a section 23 affidavit (annexure ‘1’) was provided, and in the course of later litigation, records originally requested under PAIA but repeatedly refused were ultimately surrendered. I recount this in my ‘Special Report’ to the SAHRC, online at illegal-aid.co.za/PAIA.

90.   For her own purposes – not to grant me access to the documents I’d requested; on the contrary, she even rejected and returned my mandatory request fee prescribed by section 22 of PAIA (see her final paragraph) – Vedalankar annexed twelve documents to her January letter, claimed to support the allegations made in its paragraph 9.

91.   In her January letter, Vedalankar persisted with and embellished the false budgetary explanation she’d fed me in her October 2010 letter, asserting in her paragraph 7: ‘the explanation furnished by me to you on 18 October 2010 remains valid and will be added to and clarified where possible where possible as indicated below.’ And in her paragraph 8: ‘I provide you with further information and reasons that led to the freezing of the Senior Litigator posts at Durban, Pietermaritzburg and Mthatha, in addition to the reasons furnished to you on 18 October 2010.’ And in her paragraph 38: ‘the cost-cutting measures including but not limited to the Senior Litigator posts.’ And in her paragraph 39: ‘I, and the Legal Aid SA under my watch, have never sought to make any decisions regarding the Senior Litigator posts in any ground other than the budget constraints which you have rejected.’ LASA’s own records refute this as a blatant lie. And indeed, both Vedalankar and Nair would later on completely change this ‘budget constraints’ ‘ground’ for not appointing me, and at the same time, to create a nice cover-story, not promoting the Durban candidate and not transferring the Mthatha candidate (dealt with below).

92.   Vedalankar’s January 2011 letter is a stew of objectively contradicted lies; omissions of critical financial information contradicting them; assertions of seemingly relevant but actually irrelevant facts; deceptive half-truths and red‑herrings; dishonest reliance on seemingly relevant but actually irrelevant documents claimed to support her contentions, but which didn’t, and which even contradicted them; legally ignorant misconceptions and false legal assertions – all of which speaks to the abysmal professional incompetence; the singularly low mental intelligence; the dull incomprehension of first principles of public finance and constitutional information law; and the profound personal amorality of its author, displaying a total lack of ethical principle and a wholly unscrupulous contempt for the truth, for the law, and for the Constitution and its values, and generally egregious personal and professional corruption in going about garrulously elaborating and padding with more lies the fake poverty excuse fed me in October 2010 for the criminally illegal, unrecorded, backroom abortion of my appointment, and, in the cover-up, the abortion of two other appointments to similar critical posts.

93.   Which false excuse pleaded by Vedalankar in her October 2010 letter – repeated in her January 2011 letter, and falsely confirmed in her April 2011 affidavit – Vedalankar dropped, substituted, and radically contradicted two years later in October 2012 by telling the Portfolio Committee totally different, contradictory, mutually exclusive and destructive new lies (dealt with below).

94.   For the purposes of this criminal complaint, namely that on 5 April 2011 Vedalankar falsely confirmed her dishonestly false budgetary insufficiency explanation for the abortion of my recruitment, advanced in her October 2010 and January 2011 letters to me, I’ll deal here only with the principle lies told in her January letter, and not with the myriad subsidiary lies it contains. (For instance, as elsewhere in her letter, virtually every statement in her extensive paragraph 9 is demonstrably false.)

95.   In her paragraph 27, Vedalankar stated; ‘Obviously by November 2010, after the Memorandum by the COO, it was evident that there would be no funding coming from the DoJ.’ In truth and in fact, contrary to Vedalankar’s shameless lie to me about this to maintain her fraudulent pretence that LASA hadn’t received sufficient budget from the Department to employ me, LASA had just six weeks earlier on 15 December 2010 received R89 453 000 million from the Department, inter alia, to fund salary increases under phase 1 and 2 of the OSD scheme. That is, the Department’s payment voucher (annexure ‘25’) shows ‘funding ... from the DoJ’ had indeed ‘com[e]’.

96.   The ‘Memorandum by the COO’ (annexure ‘17-V6’, second and third pages) soliciting proposals for belt-tightening measures was internally emailed by COO Makokoane on 30 September 2010 (annexure ’17-V6’, first page), two months after Vedalankar’s and Nair’s illegal, off-the-record decision to finally cancel the three substantially complete recruitments to LASA’s budgeted and funded Pietermaritzburg, Durban and Mthatha Senior Litigator posts.

97.   Having regard to the month that Makokoane circulated his ‘Memorandum’ – September 2010 – and the month Vedalankar alleged in her October 2010 letter that she and Nair aborted my recruitment, and two others – July 2010 – ‘the Memorandum by the COO’ was obviously completely irrelevant, yet Vedalankar dishonestly wove it into her financial paucity lie to pump it up.

98.   Moreover, although the ‘Memorandum by the COO’ suggested the ‘freezing of all vacant posts’ as one of the possible cost-cutting measures to reduce public expenditure at the request of Cabinet on 18 August 2010, and also because LASA hadn’t yet received its OSD allocation for salary increases, events quickly overtook it in the opposite direction.

99.      Just days after the ‘Memorandum by the COO’ in September 2010, LASA’s OSD funding allocation was included and secured in the national mid-term budget, as Vedalankar told the Portfolio Committee on 12 October 2010 (annexure ‘17-V8’), and the Treasury documents referenced above confirm (annexures ‘23’ and ‘24’).

100.  With this development, rather than ‘the freezing of all vacant posts’, exactly the opposite happened. The brake was lifted on the Board-approved freeze on 30 July 2010 on recruitment to some of LASA’s vacant, non-critical, lower criminal court public defender posts, and in the third quarter October to December 2010, legal staff recruitment sharply increased and peaked for the year at 2.5%, from 1193 to 1223 (see annexure ‘27’). But the three substantially complete recruitments for the Pietermaritzburg, Durban and Mthatha Senior Litigator posts remained on permanent ice.

101.  Such is the extraordinary deceitfulness and dishonesty of Vedalankar’s January 2011 letter, perfectly typical of the culture of brazen mendacity that I’ve encountered in my engagement with LASA’s national executives and other top officers over the past decade – one of whom tried putting the SAHRC off from assisting me access LASA’s records, illegally and unconstitutionally denied me, by telling it the lie that whereas ‘one candidate got the Durban post’ I’d ‘somehow gotten the impression he [I] had gotten the Pietermaritzburg post. ... Adv Brink received a latter not explaining why he was rejected.’ As if my ‘impression’ from HRE Clark’s email (annexure ‘17-V12’) that I’d been selected and recommended (later confirmed by the recommendation report: annexure ‘17-V7’) was wrong, and that actually I’d been ‘rejected’ – falsely implying I was just wasting everyone’s time. Turned up with a broadly framed PAIA request addressed to it, the SAHRC’s telephone note of this false information given it is annexed marked ‘29’.

102.  The juxtaposition and unambiguous logical flow of Vedalankar’s sentences – ‘Since early this year, management has had to identify positions which could be frozen. In July 2010 the NOE and CEO took the decision that all senior litigator posts that were vacant would be immediately frozen.’ – was clearly contrived to generate the impression that Senior Litigator posts had been ‘identif[ied]’ ‘early this year’ as ‘positions which could be frozen’, and that ‘the NOE and CEO took the decision’ later on to freeze these ‘identif[ied]’ posts accordingly.

103.  But LASA’s own records show that Senior Litigator posts were never ‘identif[ied]’ for freezing ‘early this year’ or at any other time. They also show that besides the two KwaZulu-Natal Senior Litigator recruitments, which were halted when I was recommended instead of Mlambo JP’s long-time judicial colleague, other Senior Litigator recruitment continued. Mentioned and vouched above, the Bloemfontein and Mahikeng posts were filled, and the Mthatha post was energetically recruited for.

104.  The truth of it is that my recruitment was ‘immediately’ aborted and the Pietermaritzburg and Durban posts frozen when Nair discovered that I’d been selected and recommended, and that Mlambo JP’s former judicial colleague had been unexpectedly disqualified and rejected. Indeed, quoted above, he said as much under oath.

105.  There’s no question that the Pietermaritzburg, Durban and Mthatha Senior Litigator have been frozen de facto, and that they’ve been kept vacant for many years. (Irrelevant to this criminal complaint, the illegality of this under the PFMA is currently being investigated by the Auditor-General). As LASA’s records show, however, the rest of Vedalankar’s statement is dishonestly false.

106.  In the premises, Vedalankar ‘made a false statement knowing it to be false’ ‘in an affidavit’ on 5 April 2011 ‘made before a person competent to administer an oath’ and thus criminally contravened section 9 of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 for which she is ‘liable upon conviction to the penalties prescribed by law for the offence of perjury’, namely imprisonment.

COUNT 2: FAILING TO KEEP RECORDS OF LASA’S FINANCIAL AFFAIRS

107.  Under section 1 of the PFMA, ‘“accounting authority” means a body or person mentioned in section 49’.

108.  Section 49 provides:

(1) Every public entity must have an authority which must be accountable for the purposes of this Act.

(2) If the public entity–

(a) has a board or other controlling body, that board or controlling body is the accounting authority for that entity[.]

Accordingly, LASA’s accounting authority is its Board.

109.  It bears emphasizing that section 50(1)(b) of the PFMA requires that:

The accounting authority for a public entity must act with fidelity, honesty and integrity and in the best interests of the public entity in managing the financial affairs of the public entity.

110.  Section 56(1)(a) provides:

The accounting authority for a public entity may ... in writing delegate any of the powers entrusted or delegated to the accounting authority in terms of this Act, to an official in that public entity[.]

111.  Note 30 of the Approval Framework records that on 24 November 2007 the Board duly ‘delegate[d] to the Chief Executive Officer all the powers entrusted or delegated to the accounting authority in terms of the Act’. A material excerpt from the Approval Framework is annexed marked ‘30’.

112.  Section 55(1)(a) of the PFMA prescribes:

The accounting authority for a public entity ... must keep full and proper records of the financial affairs of the public entity.

113.  Section 86(2) of the PFMA provides:

An accounting authority is guilty of an offence and liable on conviction to a fine, or to imprisonment for a period not exceeding five years, if that accounting authority wilfully or in a grossly negligent way fails to comply with a provision of section ... 55.

114.  On 15 July 2010, eight months after my successful interview back on 12 November 2009 for LASA’s Senior Litigator post at Pietermaritzburg, I wrote to Vedalankar enquiring about the extraordinary delay in approving my appointment.

115.  HRE Clark had backhandedly confirmed that I’d been selected and recommended by insolently suggesting in a deliberately opaque email on 30 April 2010 in response to my repeated enquiries five strangely silent months after my interview, that I abandon my application for the post: ‘The process is where it is. It is your decision as to whether you wish to wait to allow us to complete the process or whether you wish to withdraw.’ (Annexure ‘17-V12’.)

116.  It was clear from this that I’d beaten out my rival applicants; that I’d been selected from these other shortlisted and interviewed candidates; and that I’d been recommended as the most suitable candidate for the post, because had the selection panel rejected me and chosen someone else, I wouldn’t have had any live application to ‘withdraw’. Even as Clark dishonestly implied my interview had been unsuccessful: ‘Applying for a job is done at the applicant’s own risk. Being called to an interview is not a guarantee of being appointed to the position.’ (En passant: The only so-called ‘inside information from [my] brother’ (per Clark’s unpleasant accusation in her email, projecting her and her colleagues’ corruption onto me) that I’d ‘obtain[ed]’ – before my interview – was the open fact that the candidate recommended after the previous interviews for the post in 2008 hadn’t been approved.)

117.  On 3 August 2010, Nair answered my letter to Vedalankar in July, alleging that:

the recruitment process to finalise the appointments for all vacant Senior Litigator posts were put on hold due to various reasons. I can now confirm that we will not be proceeding with the filling of any of these posts.

A copy of Nair’s letter is annexed marked ‘31’.

118.  Nair thus unambiguously implied that after suitable candidates had been selected and recommended for the posts, duly authorised officers at LASA had duly decided, first to suspend and then to later finally abort the approval and appointment process for the selected and recommended candidates; to cancel the substantially complete recruitment processes for the posts; and to leave ‘all vacant’ Senior Litigator posts unfilled.

119.  Had Nair’s allegations been true, records of such major operational and financial decisions would obviously have existed, for as Cachalia JA pointed out pungently a couple of months later in November 2010 during the Presidency’s argument in the Supreme Court of Appeal (‘SCA’) opposing the Mail & Guardian’s PAIA claim for access to the Zimbabwe 2008 national election report commissioned by the President:

Surely there’s … a note, there’s a minute. Government does not operate like a glorified spaza shop … In the absence of any paper trail must we just accept that [public officers] are people of standing and they will never mislead, just like [US Secretary of State] Colin Powell never misled the Security Council?’

[In lying that Iraq had weapons of mass destruction to justify the American invasion.]

Annexed marked ‘32’ is a copy of the news report recording the SCA’s lamentable observation that in the real world sometimes public officers also tell lies.

120.  Consistently with the record‑keeping requirements of section 55(1) of the PFMA (since ‘Government does not operate like a glorified spaza shop’), section 12 of LASA’s Code of Ethics and Conduct requires:

Accurate and reliable records of many kinds are necessary to meet the LEGAL AID BOARD’s legal and financial obligations and to manage the affairs of the LEGAL AID BOARD. The LEGAL AID BOARD’s books and records should reflect all business transactions ... and the employees responsible for accounting and record-keeping functions are expected to be diligent in enforcing proper practices.

[The ‘Legal Aid Board’ is LASA’s former name.]

A material excerpt from this Code is annexed marked ‘33’.

121.  On the other hand, had Nair lied to me in his letter (as I’d correctly surmised), and in truth and in fact no competent, authorised person or committee at LASA had duly taken such major business decisions (as I’d correctly surmised) then obviously no records of such alleged decisions would have existed.

122.  And if indeed no such records existed (as I’d correctly surmised), then if I specified them in a records request made under section 18 of PAIA, section 23 would require LASA’s information officer to certify it. This is because section 23(1) provides:

23 Records that cannot be found or do not exist

(1)  If–

(a)   all reasonable steps have been taken to find a record requested; and

(b)   there are reasonable grounds for believing that the record–

(i)      is in the public body’s possession but cannot be found; or

(ii)    does not exist,

the information officer of a public body must, by way of affidavit or affirmation, notify the requester that it is not possible to give access to that record.

123.  With this provision in mind, I tested the truth of Nair’s allegations to me with a PAIA request delivered on 30 August 2010 for access, inter alia, to:

13. All records, including but not limited to email, reports and notes, pertaining to the decision to ‘put on hold ... the recruitment process to finalize the appointments for all vacant Senior Litigator posts’ (– per Nair’s letter to Brink).

14. All records, including but not limited to email, reports and notes, pertaining to the decision to finally abort the ‘recruitment process’ and not ‘be proceeding with the filling of any of these posts’ (– per Nair’s letter to Brink).

Material excerpts of my request are annexed marked ‘34’.

124.  As CEO, Vedalankar was LASA’s information officer ex officio under the definition of ‘information officer’ in section 1 of PAIA.

125.  To obstruct my investigation and exposure of Nair’s lies to me, and to hinder my discovery of the corrupt reason for the cancellation of the Pietermaritzburg Senior Litigator post recruitment, and with it the Durban post simultaneously advertised and recruited for, and some months later the Mthatha post (which corrupt reason I was only able to discover in April 2016 via determinedly prosecuted PAIA litigation, indefensibly opposed all the way to court before LASA’s complete capitulation), Vedalankar ignored my request for these records, thus tacitly refusing me sight of them under the deeming provisions of section 27 of the Act.

126.  Since her refusal to allow me access to LASA’s public records – or more to the point her refusal to certify that indeed they didn’t exist – violated my fundamental right to public body information guaranteed by section 32(1)(a) of the Constitution, I telephoned the PAIA Unit of the South African Human Rights Commission (‘SAHRC’), asking it to exercise its powers under section 83(3) of PAIA to ‘(c) ... assist any person wishing to exercise a right contemplated in this Act’ and ‘(d) recommend to a public or private body that the body make such changes in the manner in which it administers this Act as the Commission considers advisable’. Indeed, the SAHRC intervened and got Hundermark’s undertaking that my request would be responded to.

127.  On 18 October 2010, Vedalankar now responded to my records request by expressly refusing to comply with it (annexure ‘16’).

128.  Immaterial to this criminal complaint, Vedalankar’s several spurious, indeed fraudulent, grounds advanced for totally refusing me the requested records, later substituted with other spurious grounds for refusing them, also later abandoned, and her refusal to certify that the above specified records didn’t exist, are canvassed in my ‘Special Report’ to the SAHRC in November 2016, accessible online at illegal‑aid.co.za/PAIA.

129.  In paragraphs 6.7 and 7.3 of her October letter refusing my PAIA request, Vedalankar alleged the following:

In July 2010 the NOE and CEO took the decision that all senior litigator posts that were vacant would be immediately frozen.

...

The NOE and CEO took the decision that all senior litigator posts that were vacant would be frozen. Therefore, the three vacant Senior Litigator positions for Durban, Pietermaritzburg and Mthatha have been frozen.

130.  It’s beyond issue that indeed ‘the three vacant Senior Litigator positions for Durban, Pietermaritzburg and Mthatha have been frozen’ de facto, in that these budgeted and funded, critical, top-echelon legal professional posts indeed remain unfilled and vacant a decade after suitable candidates were selected and recommended for them in November 2009 and May 2010. (As mentioned above, LASA’s recruitment statistics no longer reflect Mthatha as vacant, but the original Kimberley post instead.)

131.  Completely different, radically contradictory false versions have been advanced by Vedalankar and by different LASA officers to different authorities at different times, about when and why the posts were ‘frozen’, some of which different, contradictory lies are indicted in this complaint. Where other LASA officers have told them on oath or to the Portfolio Committee, their lies will be the subject of separate criminal complaints against them to follow.

132.  Having regard to the relevant provisions of (i) LASA’s Approval Framework, (ii) LASA’s Legal Aid Guide, (iii) the PFMA; and (iv) the Constitutional Court’s judgment in Zungu on 22 January 2018, the gross illegality of Vedalankar’s and Nair’s ‘decision’ to freeze the posts, among other the facts and circumstances aggravating Vedalankar’s criminal contravention of the PFMA, is dealt with below.

133.  When in October 2010 Vedalankar now expressly refused my August PAIA request, I turned again to the SAHRC to assist me obtain her lawful compliance with it, and, as mentioned shortly below, it came in again.

134.  Correctly surmising that she’d lied to me, I tested the veracity of Vedalankar’s allegations in her October letter quoted above with a second PAIA request on 15 December 2010, inter alia for:

10. The resolution passed by “management” ... in relation to the claim: “In July 2010 the NOE and CEO took the decision that all senior litigator posts that were vacant would immediately be frozen.”

[my ellipsis for relevance]

Material excerpts from my request is annexed marked ‘35’.

135.  On 28 January 2011, Vedalankar totally refused my second PAIA request as well, on the untruthfully false basis that it merely ‘repeated’ the first. (As said, she gave me certain documents, not to meet my request, but for her own purposes, namely ‘To demonstrate’ her various contentions.) Her refusal is annexure ‘17’.

136.  Eventually, under further SAHRC pressure – I’d again pleaded for its support – to lawfully and properly comply with my PAIA requests of August and December 2010, Vedalankar delegated Nair to respond to them, as well as to my third PAIA request made in March 2011, and to this end designated him deputy information officer under section 17 of PAIA (annexure ‘1-BN1’).

137.  In compliance with section 23 of PAIA in regard to the non-existent records I’d specified, Nair truthfully confirmed on oath on 8 April 2011 (annexure ‘1’, paragraph 14), as he was forced to do, that:

no written record exists of the decision taken in July 2010 by the NOE in consultation with the CEO and HRE to freeze the senior litigator post.

[The ‘post’ in question, being at Pietermaritzburg, for which I’d applied and been selected and recommended.]

138.  Albeit perjuriously reiterating Vedalankar’s false budgetary insufficiency excuse and adding new lies of his own (to be dealt with in a separate criminal complaint against him), Nair truthfully confirmed again (in his paragraph 15) that the said records I’d requested don’t exist:

[T]he uncertain funding difficulty resulted in a decision being taken by Legal Aid South Africa executives to delay and eventually freeze the recruitment of certain positions including the vacant senior litigator positions. For the sake of completeness, I further mention that no written record of this decision exists.

139.  In her confirmatory affidavit (annexure ‘2’), Vedalankar certified on oath that the contents of Nair’s affidavit as far as she was involved were true. That is, Vedalankar confirmed on oath that no record exists of her and Nair’s decision to freeze the three vacant Senior Litigator posts, including the Pietermaritzburg post for which I’d been duly chosen, as claimed in her October 2010 and January 2011 letters to me (annexures ‘16’ and ‘17’).

140.  In short – and this is the nut of it – on her own sworn version Vedalankar made and kept no record of her decision taken with Nair to finally abort the finalisation of the Pietermaritzburg, Durban and Mthatha Senior Litigator appointments, and to permanently freeze recruitment to the three vacant, critical, budgeted and funded, specialist legal professional posts at the top of LASA’s staff establishment.

141.  I say finally abort, because it’s evident from Vedalankar’s email to Nair on 29 July 2010 (annexure ‘1-BN3’), sent after reading my letter to her that month, in which I was enquiring about the peculiar delay in my appointment, that she had no idea at that point about the corrupt silent unrecorded cancellation of the Pietermaritzburg, Durban and Mthatha Senior Litigator recruitments by Nair, even as the Mahikeng and Bloemfontein ones had proceeded. In plain speech, near the end of July 2010, eight months after Nair’s ‘immediate’ abortion of my recruitment in November 2009, she wasn’t yet in the loop; she hadn’t yet been told.

142.  As LASA’s duly delegated accounting officer at the time (in July 2010, having been delegated in November 2007, per Note 30 of the Approval Framework (annexure ‘30’)), Vedalankar’s final abortion of the said Senior Litigator recruitment processes and her permanent freezing of the posts without making any record of these major operational and financial decisions contravened section 55(1) of the PFMA, a serious crime under section 86 for which she’s liable to be jailed for five years – more especially in light of the particular aggravating circumstances in the case that distinguish it from a mere technical failure to comply with the record-keeping requirements of the PFMA, non‑compliance with which, unlike many other forms of serious financial misconduct contemplated by the Act justifying dismissal, is additionally sanctioned by criminal penalties.

143.  The reasons Vedalankar made and kept no record of her decisions taken with Nair to abort the substantially complete Pietermaritzburg, Durban and later the Mthatha Senior Litigator recruitments, and to freeze these critical, budgeted and funded, top-level legal professional posts, were that her and Nair’s decisions to do so (i) were corruptly motivated; (ii) were illegal for manifold reasons; (iii) defied the express wishes of both the Justice Minister and of the Portfolio Committee; and (iv) obstructed critical legal service delivery in KwaZulu-Natal and in the Eastern Cape to the massive prejudice of the indigent in those provinces, deprived of access to specialist legal professional services to protect and vindicate their ‘Constitutional rights and socio-economic rights’, as LASA’s current Strategic Plan 2015–20 puts it, and thereby ‘give content to the Constitution through impact litigation’ and ‘develop jurisprudence on social justice matters’.

144.  I canvass these aggravating circumstances extensively in Part One of my affirmed complaint to the Auditor-General, and request that it be read as part of this criminal complaint in aggravation of this count. For optimal clarity and legibility, I annex the final draft before signature, marked ‘36’. As said, a scanned copy of the signed and attested document that I delivered, currently under investigation, is accessible online at illegal‑aid.co.za/AG.

145.  In the premises, in failing as LASA’s delegated accounting officer ‘to keep full and proper records of the financial affairs of the public entity’ Vedalankar criminally contravened section 55(1) of the PFMA, read with the penalty provisions of section 86(2), for which she’s liable to be jailed for five years.

COUNT 3: FALSE REPORTING TO THE PORTFOLIO COMMITTEE

146.Section 17(2)(d) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 provides:

2  A person who –

...

(d)  with intent to deceive a House or committee, produces to the House or committee any false, untrue, fabricated or falsified document; ...

...

commits an offence and is liable to a fine or to imprisonment for a period not exceeding two years or to both the fine and imprisonment.

147.  On 17 August 2010, Vedalankar signed her CEO report for 2009/10, a copy of which is annexed marked ‘37’.

148.  Just two weeks earlier ‘in July 2010 after the Board meeting’, as LASA pleaded for the true information of the judge in my labour case (annexure ‘22’, paragraph 33.2), which meeting was held on the 31st as the minute reflects (annexure ‘17-V10’), Vedalankar and Nair had on the last day of July 2010 finally cancelled the substantially complete Pietermaritzburg, Durban and Mthatha Senior Litigator recruitments for which suitable candidates had been selected and recommended, and had decided to leave the three critical posts unfilled, as stated her October 2010 letter (annexure ‘16’, paragraphs 6.7 and 7.4–5): (1) without the authority to do so under the Approval Framework and therefore ultra vires and illegally; (2) off the record and therefore criminally illegally under section 55(1)(a) of the PFMA; (3) illegally under section 55(3) and (4) of the PFMA, as the Constitutional Court later pointed up in the Zungu case in January 2018; (4) illegally deviating from the Board’s Strategic Plan 2009–12 for LASA without Board approval, as required by the section 1.1 of the Approval Framework, and obstructing its implementation; (5) contrary to the express wishes of the Minister (annexures ‘17-V8’ and ‘17-V10-Annexure 1’); (6) contrary to the repeatedly expressed wishes of the Portfolio Committee (annexure ‘36’, paragraph 41); and (7) contrary to the express resolution of the Board that day, 31 July 2010 (annexure ‘17-V10’), passed at the instance and recommendation of the management executive committee – including Vedalankar and Nair – recorded in their Report to Board (annexure ‘17-V10-Annexure 1’) to prioritise recruitment to LASA’s critical posts, such as Senior Litigator posts, while temporarily freezing recruitment to some lower criminal court public defender posts until the issue over the payment of OSD phase 1 funding had been resolved (canvassed in the said Report to Board).

149.  Having committed these multiple gross illegalities, some criminal under the PFMA, later falsely justified to me in her 18 October 2010 letter on financial grounds (later abandoned and substituted with other false justifications; see below), Vedalankar obviously didn’t tell the Portfolio Committee about any of this criminal recruitment corruption in which she’d now made herself directly complicit. Not only did she sign her October letter, she also emailed it to me herself – copying in Board chairperson Mlambo JP. A copy of her covering email is annexed marked ‘38’.

150.  On the contrary, more than keeping silent about this criminal recruitment corruption, Vedalankar positively claimed in her CEO report: ‘2009/2010 is the first year of our 2009–12 Strategic Plan period. ... Overall we are on target to make the strategic shift that we mapped for this period.’

151.  And whereas she’d shortly afterwards lie to me in her October letter that LASA was too skint to fill its Senior Litigator posts – for lack of OSD phase 1 funding, as she’d falsely elaborate in her January 2011 letter – the only mention of OSD funding in her CEO report was in relation to OSD phase 2, and even then the biggest problem it caused was just the sadness it caused LASA’s lawyers: ‘The non-implementation of Phase 2 of the Occupation Specific Dispensation for our legal professionals due to lack of funds continues to impact negatively on staff morale.’ Nothing about the delayed payment of OSD phase 1 preventing LASA from filling its three remaining vacant budgeted and funded Senior Litigator posts

152.  Vedalankar’s claim, ‘We have operated an economic budget with more than 99% of our budget being spent thus ensuring maximum delivery to our clients’ similarly deliberately misled the Portfolio Committee to believe that LASA was duly spending its legal professional salary budget in compliance with section 55(3) and (4) of the PFMA, whereas in truth and in fact she and Nair had acted illegally to prevent ‘our budget being spent’ on three Senior Litigator salaries ‘thus’ seriously obstructing ‘maximum delivery to our clients.’

153.  In this manner, Vedalankar deliberately misinformed the Portfolio Committee about LASA’s progress in the first year of its implementation of the Strategic Plan 2009–12. Nothing prevented her and Nair’s co-approval under section 8.2.2(b) of the Approval Framework of my and the Durban candidate’s appointments before the end of the financial year on 31 March 2010, following our unanimous recommendations by the selection panel in November 2009.

154.  Vedalankar’s corrupt object in misinforming the Portfolio Committee in her report of 15 August 2010 was to conceal her and Nair’s final illegal derailment six weeks earlier of a key component of LASA’s Strategic Plan 2009–12 – later emphasized as such in her CEO report for 2011/12 (see below) – namely the employment of Senior Litigators for ‘working on complex matters in the higher courts.’

155.  In the premises, Vedalankar criminally contravened section 17(2)(d) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004, for which she’s liable to be jailed for two years.

COUNT 4: LYING TO THE PORTFOLIO COMMITTEE

156.Section 17(2)(e) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 provides:

2  A person who –

...

(e)  whether or not during examination under section 15, wilfully furnishes a House or committee with information, or makes a statement before it, which is false or misleading,

commits an offence and is liable to a fine or to imprisonment for a period not exceeding two years or to both the fine and imprisonment.

157.On 12 October 2010, six days before she dishonestly falsely claimed to me in her letter on the 18th that LASA hadn’t received sufficient budget to fill its Senior Litigator posts at Pietermaritzburg, Durban and Mthatha and therefore couldn’t afford to hire me, and that the three posts had consequently been frozen, Vedalankar appeared before the Portfolio Committee to present LASA’s annual report for 2009/10 and its first quarter report for 2010/11.

158.As usual, the Portfolio Committee had called the meeting with Vedalankar and other LASA representatives in the exercise of its oversight responsibility over LASA imposed by section 55(2)(b)(ii) of the Constitution to ensure that LASA’s operations were being duly conducted in compliance with all applicable laws.

159.The Parliamentary Monitoring Group (‘PMG’) made an audio recording of the meeting and posted it online, and I promptly transcribed Vedalankar’s presentation. My transcript is annexed marked ‘39’.

160.The original hyperlink (pmg.org.za/node/23447) that I used to access the recording is no longer live, but the accuracy of my transcript isn’t in dispute, because in her January 2011 letter Vedalankar herself relied on my transcript of what she said, duly describing it as ‘Extract of audio recording of my presentation to Portfolio Committee on Justice on 12 October 2010’ and annexing a copy (annexure ‘17-V8’).

161.The transcript records that the Portfolio Committee directed Vedalankar to provide a general overview of LASA’s affairs, rather than talk to the particulars of its annual report for the financial year 2009/10 ending 31 March 2010, and its first quarter report for the three-month period ending 30 June 2010; and, material to this criminal complaint, the transcript reflects that Vedalankar provided the Portfolio Committee with information pertaining to subsequent financial and related developments.

162.Vedalankar informed the Portfolio Committee that:

in terms of the overall performance that we are on track on all components of our Business Plan and we are confident that we will deliver this Business Plan in this financial year also. So we don’t have any problem areas that we would like to report on.

163.Vedalankar didn’t tell the Portfolio Committee, as she told me a week later, that LASA lacked the budget to ‘deliver’ on one of the major ‘components of our Business Plan’, namely to appoint nine Senior Litigators at various seats of the High Court, of which six such posts had been filled, and to fill the remaining three vacant posts with the candidates selected and recommended for them.

164.Vedalankar’s claim to the Portfolio Committee that ‘in terms of the overall performance ... we are on track on all components of our Business Plan and we are confident that we will deliver this Business Plan in this financial year also’ was dishonestly false. Quite the contrary, filling LASA’s Senior Litigator posts wasn’t on track at all, nor was service delivery under the Business Plan going to take place, because according to her letter to me a week later on 18 October (annexure ‘16’), she and Nair had frozen recruitment to a third of the posts – indefinitely, per her paragraph 7.5: ‘Should we decide to unfreeze these positions in the future, the positions will be duly advertised and you will be at liberty to submit your application for any of the positions.’

165.Considered especially with her next very true allegation ‘So we don’t have any problem areas that we would like to report on’ – inasmuch as no lawful impediment prevented LASA’s implementation of its budgeted and financed Business Plan, in conformity with its Strategic Plan 2009–12 to hire Senior Litigators – Vedalankar’s false allegation that ‘in terms of the overall performance ... we are on track on all components of our Business Plan and we are confident that we will deliver this Business Plan in this financial year also’, deceptively conveyed to the Portfolio Committee and misled it to understand that LASA was duly creating posts and filling them in accordance (i) with its approved, transferred and received budget, (ii) with its Business Plan, and (iii) with its Strategic Plan, and that a major component of the Strategic Plan, later repeatedly highlighted by Vedalankar as such, namely to employ Senior Litigators, was being duly implemented, when in truth and in fact it wasn’t ‘on track’ because it had been criminally obstructed and derailed.

166.These allegations that Vedalankar made to the Portfolio Committee deceptively concealed from it the fact that three substantially complete Senior Litigator recruitments had been illegally cancelled off the record – by her and Nair in July 2010, according to her letter of 18 October 2010 – to the tremendous prejudice of the poor (i) in KwaZulu-Natal, completely denied complex constitutional and other specialist litigation services for nearly five years at that stage since the creation of the Pietermaritzburg and Durban Senior Litigator posts in November 2006, and (ii) in the Eastern Cape, denied a second Senior Litigator at Mthatha to share the Port Elizabeth Senior Litigator’s huge burden of having to service all four distant High Courts in that geographically vast province (per the Regional Operations Executive’s cogent motivation for the post to be created).

167.In truth and in fact, dishonestly concealed by Vedalankar from the Portfolio Committee, there were indeed very serious ‘problems areas’ to ‘report on’, namely her and Nair’s unauthorised, off-the-record and therefore criminally illegal abortion of three substantially finalised critical Senior Litigator recruitments, and their unauthorised, off-the-record, criminally illegal freezing of the posts, illegally deviating from LASA’s Strategic- and Business Plans to appoint Senior Litigators to handle specialist constitutional and other complex litigation for the indigent, and obstructing service delivery in this regard.

168.Had Vedalankar told the Portfolio Committee, as she would tell me a week later on 18 October, that in July 2010 she and Nair had cancelled three Senior Litigator appointments because LASA lacked the funds to complete a key component of its Strategic Plan 2009–12, namely the employment of nine Senior Litigators at seats of major High Court divisions around the country to render the just-mentioned high-level litigation services to the poor, the Portfolio Committee would certainly have intervened to remedy this.

169.The reason Vedalankar didn’t tell the Portfolio Committee – as she was about to tell me a week later – that in July 2010 she and Nair had finally cancelled my and two other Senior Litigator appointments because LASA couldn’t afford to hire us, is that her justification of this to me, confirmed under oath in April 2011, was an outright lie. (The silent thought in Vedalankar’s mind would have been: ‘we would like’ not ‘to report on’ those gross illegalities, because they’ll get us dismissed and jailed.)

170.Vedalankar’s further reason for deceptively not telling the Portfolio Committee about her and Nair’s backroom abortion of the recruitments and decision to freeze the three posts is that it was illegal on its own terms. LASA’s Approval Framework gave Vedalankar and Nair no so such power to materially deviate from the Strategic Plan without Board approval (required by section 1.1), and more importantly their unrecorded decision was both illegal and criminal under sections 53(4) and 55(1)(a) of the PFMA respectively.

171.Aggravating Vedalankar’s criminal deception of the Portfolio Committee is her true report made later in her address (i) that ‘the Minister’ had expressly stated ‘he didn’t want’ any posts frozen pending provision made for, and transfer of, LASA’s OSD funding allocation, and that meanwhile ‘we needed to continue with the business’; and (ii) that provision for this extra funding for salary increases had just been included in the national mid‑term budget: ‘it was in the mid-term adjustment’, as she put it, in ‘the mid‑term adjustment budget’.

172.That is, over and above being unauthorised, unrecorded, unlawful on multiple scores, as well as criminally illegal, Vedalankar’s and Nair’s off-the-record decision to cancel the three Senior Litigator appointments in question and to freeze recruitment to the budgeted and funded vacant posts defied the Minister’s express wishes that no posts at LASA be frozen, and that LASA should ‘continue with the business’ of implementing its Business Plan pending allocation and receipt of OSD funding for legal staff salary increases.

173.In the context of the rest of her address, Vedalankar’s mention of the Minister’s wishes will have created the clear false impression in the minds of the Portfolio Committee’s members, as it was deceitfully contrived to do, that no vacant posts at LASA had been frozen, even though doing so had been considered, and LASA was going about the business of filling them in accordance with its Business- and Strategic Plans.

174.What aggravates Vedalankar’s deception of the Portfolio Committee further is that, as she well knew and explicitly told it, provision for OSD funding ‘was in the mid-term adjustment’ after ‘the Minister ... had assisted’, so there was zero financial reason of any shape or form for her and Nair to justify not concluding the appointments of the three Senior Litigator candidates selected and recommended for LASA’s critical, budgeted and funded Pietermaritzburg, Durban and Mthatha posts. The fact of this secured funding provision was all the more reason for Vedalankar to have deceived the Portfolio Committee by not mentioning her and Nair’s abortion of the three remaining critical Senior Litigator appointments and their freezing of the posts.

175.The full minute of the 12 October 2010 meeting is annexed marked ‘40’. It reveals that neither Vedalankar nor any other LASA officer claimed (as was about to be claimed to me) that LASA had had to abort three substantially complete Senior Litigator recruitments and freeze the three vacant posts for lack of salary funding to fill them. On the contrary, the minute records that the Portfolio Committee was falsely told that LASA ‘had managed to achieve its targets’, and that ‘LASA had no problem with regards to recruiting lawyers’ and that ‘civil matters were expected to grow, as there was now added capacity.’ Where other LASA officers told these lies to the Portfolio Committee, Vedalankar didn’t correct them; instead, she tacitly associated herself with them and with their criminal deception of the Portfolio Committee.

176.Vedalankar herself ‘listed under the challenges that would be undertaken by the organisation’ the fact that ‘LASA was still struggling with the load where civil matters were concerned.’ Deceptively dishonestly, she obviously didn’t volunteer to the Portfolio Committee that one of the reasons for this is that two-and-a-half months earlier, at the end of July, she and Nair had illegally aborted the recruitment of three Senior Litigators to alleviate ‘the load where civil matters are concerned’.

177.Vedalankar’s deception of the Portfolio Committee with her false information and omission of critically material information, also her complicity in other LASA officers’ misinformation, was clearly calculated to defeat its constitutional oversight function and evade being held to account for her unlawful and criminal contraventions of sections 53(4) and 55(1)(a) of the PFMA in aborting, off the record, without authority under the Approval Framework, against the wishes of the Minister and of the Portfolio Committee, three substantially complete Senior Litigator recruitments and freezing recruitment to the three remaining critical budgeted and funded posts, thereby unlawfully obstructing and preventing the implementation of the Board’s Strategic Plan presented to the Portfolio Committee on 14 April 2010 (annexure ‘28’), and obstructing and preventing critical specialist litigation service delivery to the poor in KwaZulu-Natal and in the Eastern Cape.

178.Considered as a whole, Vedalankar’s address to the Portfolio Committee on 12 October 2010, calculated to frustrate and defeat the Portfolio Committee’s constitutional oversight function over LASA, as it did, was ‘false and misleading’ within the contemplation of section 17(2)(e) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004.

179.In the premises, Vedalankar criminally contravened the said section, for which ‘false and misleading’ information, she’s liable to be jailed for two years.

COUNT 5: WILFULLY MISLEADING THE PORTFOLIO COMMITTEE

180.On 31 March 2011, Vedalankar appeared with other LASA officers before the Portfolio Committee for the ‘Legal Aid presentation: Strategic plans, Annual Performance Plan and budget 2011/12’. The minute of the meeting is annexed marked ‘41’.

181.Early in 2011 (I didn’t record and don’t recall the exact date), I’d telephoned Portfolio Committee member Hon John Jeffery MP (now Justice Deputy Minister; hereafter ‘Jeffery’) – having obtained his cellphone number from his son, a close friend of my own two sons, all of whom had grown up together in Pietermaritzburg and then in Cape Town – and complained about the obviously irregular abortion of my recruitment; the obvious lies Vedalankar and Nair had told me about it; their repeated and persistent illegal and unconstitutional refusals of my PAIA requests made to investigate the lies they’d told me as they strained to keep the lid on the corruption I’d run into.

182.In short, at the time of the meeting on 31 March 2011, Jeffery was alive to the fact that three Senior Litigator appointments had been irregularly cancelled and the posts irregularly frozen.

183.In her address:

Ms Vidhu Vedalankar, Chief Executive Officer, LASA, noted that the Annual Performance Plan (APP) also referred to as the Business Plan, expanded on the strategies. ... This document ... established the links between the objectives and the programmes. ... She said that LASA wanted to increase its civil matters by 10% from the previous year. She conceded that targets for civil work had not been achieved in the past ... LASA sought to increase the capacity of its legal practitioners through training.

184.Portfolio Committee member ‘Mr S Swart (ACDP) noted that LASA had a high standard. He though that the “impact legislation” [sic: litigation] in civil matters was commendable.’

185.‘Ms Rebecca Hlabatau, Chief Financial Officer, LASA ... noted that over the past seven years, LASA had spent around 99% of its budget, and the as-yet-unaudited figures for the financial year ended 31 March 2011 indicated it would spend about 99.6%. LASA had nine years of unqualified audit reports, with unqualified reports with no matters of emphasis for the past five years.’

186.‘Mr Jeffery enquired about the vacancy rate, generally, and at professional assistant level.’ Crucially, by ‘the vacancy rate ... at professional assistant level’, Jeffery was referring very specifically to the irregular vacancy rate in regard to LASA’s Senior Litigator posts, about which I’d complained directly to him on the telephone. As its own records show, LASA itself refers to Senior Litigators as ‘PAs’ (Professional Assistants). Annexed marked ‘42’ is a material excerpt from LASA’s ‘Additional MTEF Allocation for FY07/08 – Budget Proposals’. Under the heading ‘Strengthening Senior Litigation Capacity’, the last page makes provision for a ‘National Total’ of ‘9’ ‘PAs’, i.e. nine Senior Litigators.

187.Responding to Jeffery’s question about ‘the vacancy rate, generally, and at professional assistant [a.k.a. Senior Litigator] level’:

Ms Vedalankar replied that in 2010/11, LASA had set a target of 96% of all posts filled, although it had then held back on filling some of the vacancies because of the uncertainty of obtaining OSD funding in Phase 1, which if not recovered, would have put the LASA into deficit. OSD was now settled in the baseline figures, and she thanked the Committee for its support in this regard. LASA now had 96% of all posts filled.

188.The unambiguous burden of Vedalankar’s answer to Jeffery’s question was that after delaying recruitment to some posts – including Senior Litigator posts, to which Jeffery had pertinently referred by LASA’s other name for them, Professional Assistants – because of the OSD phase 1 uncertainty, now resolved, normal recruitment had resumed and LASA had now filled 96% of all its posts with the salary budget provided for them, in fulfilment of its original recruitment target for the financial year – including its erstwhile vacant Senior Litigator posts, the filling of a third of which LASA had delayed during the OSD phase 1 funding uncertainty, but now that it was over it had now filled.

189.Dishonestly contrived to pervert Jeffery’s enquiry as the Professional Assistant/Senior Litigator recruitment rate with which he stated he was specifically concerned – after I’d alerted him to Vedalankar’s and Nair’s illegal abortion of my and two other Senior Litigator recruitments – Vedalankar’s answer was absolutely false in relation to the Senior Litigator post vacancies on multiple scores, which is to say Vedalankar told the Portfolio Committee a multitude of criminal lies.

190.First, LASA never ‘held back on filling’ any Senior Litigator posts. LASA’s records (annexures ‘17-V5’ and ‘17-V10-Annexure 1’), including Vedalankar’s correspondence with the Director-General (annexure ‘17-V4’) show that freezing these critical, top professional echelon posts was never contemplated. The only posts ever considered by Vedalankar (annexure ‘17-V4’, third paragraph), by Nair (annexure ‘17-V5’), and by the Management Executive Committee collectively (annexure ‘17-V10-Annexure 1’) for temporary freezing until the OSD phase 1 uncertainty had been resolved (annexure ‘17-V10-Annexure 1’, section 4.II) were some non-critical lower criminal court public defender posts serving the District and Regional Courts.

191.Vedalankar’s clear implication to the Portfolio Committee that LASA ‘held back on filling’ Senior Litigator posts on account of the OSD phase 1 uncertainty was absolutely untrue.

192.In truth and in fact, she and Nair had illegally cancelled three substantially complete Senior Litigator recruitments for reasons unconnected with any financial consideration. (Indeed, discussed below, both she and Nair would later drop the false financial alibi and replace it with others.)

193.Second, Vedalankar’s statement – ‘OSD was now settled in the baseline figures, and she thanked the Committee for its support in this regard. LASA now had 96% of all posts filled.’ – dishonestly falsely implied that LASA had since met its original recruitment target by filling all the posts it had intended to fill at the beginning of the year, before the OSD uncertainty arose, including its remaining vacant Senior Litigator/Professional Assistant posts.

194.Vedalankar’s clear implication to the Portfolio Committee, namely that, with the resolution of the OSD phase 1 uncertainty, LASA had now filled it vacant Senior Litigator posts, was absolutely false.

195.In truth and in fact, three of LASA’s nine budgeted and funded Senior Litigator posts had been permanently frozen, off the record, without authority under the Approval Framework, in defiance of the Board’s resolution that critical posts be prioritised for recruitment, in defiance of the Portfolio Committee’s repeatedly stated concern that critical posts in the Justice cluster be filled, in defiance of the Minister’s express wish that LASA not freeze any posts and that it continue recruiting to fill its vacant posts, and criminally and otherwise illegally under the PFMA.

196.Nowhere in her presentation – neither in her main address, nor in reply to Jeffery’s question about ‘the vacancy rate’ – after the Portfolio Committee had complimented LASA for its impact litigation (conducted by Senior Litigators), and after Hlabatau had assured it that LASA was duly spending its budget – did Vedalankar inform the Portfolio Committee that in July 2010 she and Nair had aborted the recruitments of the three candidates recommended for LASA’s three remaining Senior Litigator posts at Pietermaritzburg, Durban and Mthatha, and that they’d permanently frozen the budgeted and funded posts, and that LASA was deliberately illegally not spending one third of its Senior Litigator salary budget on filling them.

197.Vedalankar deceptively failed to inform the Portfolio Committee that one of the major reasons ‘that targets for civil work had not been achieved in the past’ was precisely that she and Nair had illegally obstructed the recruitments of three Senior Litigators to perform civil impact litigation to which the Portfolio Committee had specifically referred and – kept uninformed of the true facts – had been impressed by.

198.Vedalankar further deceptively failed to inform the Portfolio Committee that even as ‘LASA sought to increase the capacity of its legal practitioners through training’, she and Nair had illegally hindered this by blocking the appointments of three Senior Litigators to provide it. Among the responsibilities of Senior Litigators, according to the advertisement for the posts (annexure ‘8’) was to ‘Assist with in-house legal training sessions’ and ‘Develop the litigation expertise within the LAB by providing individual mentoring and coaching to legal staff’.

199.In the premises, Vedalankar wilfully misled the Portfolio Committee in criminal contravention of section 17(2)(e) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004, for which she’s liable to be jailed for two years.

COUNT 6: FALSE REPORTING TO THE PORTFOLIO COMMITTEE

200.Not only did Vedalankar deceptively fail to inform the Portfolio Committee at the 31 March 2011 meeting about her and Nair’s criminally illegal, unauthorised, off-the-record abortion of the Pietermaritzburg, Durban and Mthatha recruitments and freezing of these critical Senior Litigator posts, she positively misinformed it by producing to it a ‘false, untrue, fabricated or falsified document’ ‘with intent to deceive’ the Portfolio Committee (in the language of section 17(2)(d) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004, quoted in paragraph 147 above), to wit LASA’s false ‘Annual Performance Plan (APP) also referred to as the Business Plan’, as she put it, for 2011/12. Material excerpts of it are annexed marked ‘43’.

201.Under the heading, ‘Talent acquisition and retention’, section P26-10 of LASA’s ‘Business Plan 2011/12’ falsely stated: ‘No longstanding vacancies’.

202.In truth and in fact, contrary to this blatant lie told to the Portfolio Committee in this ‘Business Plan 2011/12’, as at 31 March 2011 (the date of the meeting at which Vedalankar presented it), LASA’s critical Pietermaritzburg and Durban Senior Litigator posts had been vacant for four-and-half years since the creation of the posts by resolution of the Board in November 2006, at the instance of executive management, Vedalankar and Nair included. The Report to the Board motivating that the posts be created is annexed marked ‘44’. The Board Secretary’s confirmation that the proposal was approved and that salary funding be budgeted for the new posts is annexed marked ‘45’. An excerpt from LASA’s budget application for funding for the nine new Senior Litigator posts is annexure ‘42’. (It shows that a post at Nelspruit was originally intended; in the event, a second post for KwaZulu-Natal was created at Pietermaritzburg instead.)

203.Indeed, just three months before this criminally false information to the Portfolio Committee – ‘No longstanding vacancies’ – to cover up the criminally illegal, unrecorded, unauthorised, abortion of the Pietermaritzburg, Durban and Mthatha recruitments and freezing of the posts, LASA’s December 2010 recruitment/vacancy/budget statistics truthfully show that the Pietermaritzburg and Durban Senior Litigator posts were vacant (annexure ‘19’). Also the original Kimberley post. And the posts are still vacant. All this exposing the flat-out lie contained in the false Business Plan 2011/12 that Vedalankar produced to the Portfolio Committee.

204.The original author of this lie, ‘No longstanding vacancies’, told to the Portfolio Committee in the ‘Business Plan 2011/12’, which Vedalankar specifically vaunted to it, was the ‘Responsible Executive’, ‘HRE’ Clark (annexure ‘42’). (Clark will be the subject of a separate criminal complaint for it.)

205.The Portfolio Committee, indeed the National Assembly, was successfully defrauded: ‘All members expressed their congratulations both on the achievements and the report’ (annexure ‘41’), including such ‘achievements’ falsely alleged as having ‘No longstanding vacancies’ (annexure ‘43’). The official transcript of the ‘Proceedings of the Extended Public Committee’ two months later on 7 June 2011 chaired by ‘House Chairperson Mr C T Frolick’ to debate the ‘Appropriation Bill’, ‘Vote No 24 – Justice and Constitutional Development’ records that ‘The Justice and Constitutional Development portfolio committee, as in previous years, has been impressed by Lasa’s presentation of its strategic and annual performance plan’ – including the impressive lie in LASA’s ‘annual performance plan’ for 2011/12, i.e. its ‘Business Plan 2011/12’, about ‘No longstanding vacancies’. ‘The ANC supports Lasa’s goal of expanding its civil work and impact litigation despite the financial constraints that it faces in this regard. Therefore, the ANC supports Lasa’s aim to reach the rural poor.’ (The ‘financial constraints’ limited LASA’s wish to increase the number of its civil posts, not fill existing posts.)

206.On account of Vedalankar’s deceptive failure to disclose this, the National Assembly’s Extended Public Committee was unaware that LASA’s proclaimed ‘goal of expanding its civil work and impact litigation’ had been obstructed – entirely in KwaZulu-Natal and substantially in the Eastern Cape – by Vedalankar’s and Nair’s illegal backroom abortion of three substantially complete recruitment processes to fill LASA’s remaining three budgeted and funded Senior Litigator posts at Pietermaritzburg, Durban and Mthatha with the suitably qualified and experienced lawyers recommended for them to meet its ‘goal of expanding its civil work and impact litigation’.

207.In sum, the Extended Public Committee declaimed:

One of the shining stars is clearly Legal Aid SA, whose presentation greatly impressed many members. ... [It] serves as an inspiration to other organs and departments that service delivery can be effectively provided. Well done Judge Mlambo and your team! [Applause.]

208.Had Vedalankar informed the Portfolio Committee about her and Nair’s criminally illegal, unauthorised, off-the-record abortion of the Pietermaritzburg, Durban and Mthatha Senior Litigator recruitments and freezing of the critical posts, obstructing LASA’s ‘goal of expanding its civil work and impact litigation’, the National Assembly’s Extended Public Committee would certainly not have clapped its hands for this profoundly corrupt organisation and its lawless, criminally mendacious top officers as a model of probity and good governance for other public entities and departments to emulate.

209.In the premises, Vedalankar criminally contravened section 17(2)(d) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004, for which she’s liable to be jailed for two years.

COUNT 7: FALSE REPORTING TO THE PORTFOLIO COMMITTEE

210.Quoted in paragraph 147 above, section 17(2)(d) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 criminally sanctions with two years imprisonment the production to the Portfolio Committee of a ‘false, untrue, fabricated or falsified document’ ‘with intent to deceive’ it.

211.The heading of the minute of LASA’s meeting with the Portfolio Committee on 31 March 2011 (annexure ‘41’) reflects that Vedalankar and her colleagues also presented ‘LASA’s budget 2011/12’. Material excerpts of this budget are annexed marked ‘47’.

212.Section 2.2 of its Executive Summary alleged to the Portfolio Committee that that at ‘regional and justice centres’, the ‘recruitment rate was increased to 100% in the 2011/12 financial year.’ And again in section 4.1: ‘The recruitment level was also increased from 97% in [the] 2010/11 financial year to 100% in 2011/12.’

213.This claim was absolutely false. The ‘recruitment level’ had not been ‘increased to 100% in the 2011/12 financial year’, as dishonestly alleged to the Portfolio Committee. Vedalankar and her colleagues at the meeting, who produced LASA’s Budget 2011/12 to the Portfolio Committee, with its Executive Summary repeatedly making this false claim, well knew that three substantially complete recruitments to LASA’s remaining three vacant Senior Litigator posts at the top of LASA’s legal professional staff establishment had been illegally aborted off the record, and the budgeted and funded critical posts deliberately left unfilled with the intention of keeping them filled indefinitely (until I’d abandoned my pursuit of my appointment).

214.That is, the ‘recruitment level’ hadn’t been ‘increased to 100% in the 2011/12 financial year’, because in truth and fact: (i) the said three critical posts were vacant (the vacancies concealed by the lie about ‘No longstanding vacancies’ told in the false Business Plan 2011/12 (annexure ‘43’); and (ii) Vedalankar and Nair intended keeping the budgeted and funded vacant – illegally under section 53(4) of the PFMA – as indeed they did, because the budgeted and funded posts remain vacant to this day. (Frustrating their corrupt designs, I didn’t walk away, and more than a decade later I continue to pursue my appointment to the top professional post for which I was unanimously recommended instead of Mlambo JP’s former long-time judicial colleague.)

215.In the premises, Vedalankar criminally contravened section 17(2)(d) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004, for which she’s liable to be jailed for two years.

COUNT 8: MISLEADING THE PORTFOLIO COMMITTEE

216. Quoted in paragraph 157 above, section 17(2)(e) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 criminally sanctions wilfully furnishing the Portfolio Committee with information, or making a statement before it, which is false or misleading, with two years imprisonment.

217.On 11 October 2011, Vedalankar, Hundermark and other LASA officers appeared before the Portfolio Committee to present LASA’s annual report for 2010/11. The PMG made an audio recording of the meeting and posted on its website. A transcription of material portions is annexed marked ‘48’.

218.As mentioned above, I’d complained directly to Jeffery inter alia about Vedalankar’s and Nair’s abortion of my recruitment to the Pietermaritzburg Senior Litigator post and the obvious lies they’d told me about it.

219.I’d also copied to ‘The chairperson of the Portfolio Committee on Justice and Constitutional Development, Luwellyn Landers MP, and all committee members’ my letter to the Board of 29 July 2011 announcing that I’d now sued for my instatement to the Pietermaritzburg Senior Litigator post and pleading for a conciliatory resolution of my claim. My letter is annexed marked ‘49’.

220.In short, at the 11 October 2011 meeting Jeffery was aware that LASA’s remaining three out of nine budgeted and funded Senior Litigator posts had been irregularly left unfilled due to recruitment malfeasance; and he accordingly raised his concern about whether LASA was using its own lawyers to conduct impact litigation – which ‘specifically our Senior Litigators’ did, as Hundermark confirmed (see below) – or whether private counsel were being briefed to do it, ‘because ... you don’t seem to be spending the money allocated to impact litigation’ – just as I’d complained to him.

221.Jeffrey asked:

I just have a question on the impact litigation. I see there was a booklet in the bag you gave us on impact litigation, and I think it’s a good concept, but the booklet refers to a number of cases, I sort of just wanted to find out: was LASA involved in these cases referred to in the booklet, but that’s from 6.1 on page 14 of the booklet, I mean in terms of, in what way, was it LASA employees or was it Judicare effectively because I see that the, if I’m understanding it correctly on page 101 of your report, you don’t seem to be spending the money allocated to impact litigation, so if you can give clarity on that, thanks Chair.

222.Instead of ‘giv[ing] clarity on that’, Vedalankar prevaricated in reply, elliptically reiterating her lying budgetary insufficiency excuse for not appointing the candidates recommended for LASA’s three remaining Senior Litigator posts – the lie she’d told me in October 2010 (annexure ‘16’), repeated in January 2011 (annexure ‘17’), confirmed on oath in April 2011 (annexure ‘2’), and repeated to the Portfolio Committee on 31 March 2011:

Now we run quite a tight operation as you can see and it’s very hard for us and what we will do is so that we don’t jeopardise our service delivery we won’t cut in [inaudible; semble: recruitment] all we do is manage our recruitment level so that we don’t overspend in terms of what we have, so that is where we, we hold recruitment levels until we can get some additional funds [inaudible] as you can see our recruitment levels are high at 96%, we were intending to increase it to 98% because we are able to recruit but now that we have this we will probably keep it at around 97%, so that is one way just of managing it without, without jeopardising the service delivery, but in terms of our discussions with treasury and the rest of what else we can do, let’s start with that because that’s one sector with Jerry [inaudible].

223.Having regard to Jeffery’s express concern that ‘you don’t seem to be spending the money allocated to impact litigation’, Vedalankar’s answer implied: (1) that she and her executive management colleagues were duly recruiting staff to fill LASA’s budgeted and funded posts, including seasoned litigation lawyers to fill LASA’s vacant Senior Litigator posts to conduct impact litigation; (2) that LASA was duly spending its budgeted revenue, including funds allocated and transfered for impact litigation by employing Senior Litigators to conduct it; (3) that in recruiting lawyers to fill LASA’s budgeted and funded vacant posts, including expert litigation lawyers to fill its Senior Litigator posts to conduct impact litigation, ‘we don’t jeopardise our service delivery’ by making illegal, unauthorised, unrecorded decisions to obstruct the delivery of impact litigation services in KwaZulu-Natal and in the Eastern Cape; (4) that the expenditure of budgeted revenue was duly being managed ‘without jeopardising the service delivery’ of impact litigation, inter alia, conducted by Senior Litigators; and (5) LASA was strapped for funds with which to recruit staff to fill its posts, including its Senior Litigator posts created for the delivery of specialist complex impact litigation services.

224.In truth and in fact, and contrary to Vedalankar’s criminally false implications to the Portfolio Committee: (1) LASA wasn’t duly recruiting Senior Litigators to fill all its posts for these, in that she and Nair had illegally aborted three substantially complete Senior Litigator recruitments and had illegally left one third of LASA’s Senior Litigator posts vacant: three out of nine of them; (2) LASA wasn’t spending all its budgeted revenue received on employing Senior Litigators to conduct impact litigation for the just mentioned reason; (3) she and Nair had indeed deliberately and very seriously ‘jeopardise[d] service delivery’ by aborting the appointments of three Senior Litigators; (4) budgeted revenue wasn’t being duly being managed ‘without jeopardising the service delivery’ of impact litigation conducted by Senior Litigators; (5) no financial impediment whatsoever existed to prevent her and Nair from co-approving under section 8.2.2(b) of the Approval Framework the appointment of the three candidates selected and recommended for the budged and funded vacant Pietermaritzburg, Durban and Mthatha Senior Litigator posts.

225.In his turn to answer Jeffrey’s question, Hundermark confirmed that it was ‘specifically our senior litigators’ based at Justice Centres at seats of the High Court that ‘do the impact litigation’.

226.Being complicit in the corruption of Senior Litigator recruitment and its cover-up at LASA, Hundermark obviously didn’t truthfully disclose to the Portfolio Committee that LASA deliberately wasn’t ‘spending the money allocated to impact litigation’ by illegally deliberately keeping three budgeted and funded Senior Litigator posts vacant, thus preventing ‘our senior litigators’ from being able to ‘do the impact litigation’ in KwaZulu-Natal at all, and hampering its delivery in the Eastern Cape, where just one Senior Litigator at Port Elizabeth was having to service all four High Courts in that geographically huge province. To maintain the corruption cover-up, Hundermark deceptively concealed from the Portfolio Committee this non-delivery of critical specialist legal professional services in which it had expressed it special interest. (Hundermark’s criminal deception of the Portfolio Committee and his subsequent perjuries will be the subject of a separate criminal complaint and a complaint to the Legal Practice Council for his strike-off as an attorney.)

227.In the premises, by misleading the Portfolio Committee in the above manner, Vedalankar criminally contravened section 17(2)(e) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004, for which she’s liable to be jailed for two years.

COUNT 9: WILFULLY FAILING TO FAIRLY PRESENT IN LASA’S ANNUAL REPORT ITS STATE OF AFFAIRS, ITS BUSINESS, ITS FINANCIAL RESULTS, ITS PERFORMANCE AGAINST PREDETERMINED OBJECTIVES, AND ITS FINANCIAL POSITION AS AT THE END OF THE FINANCIAL YEAR CONCERNED

AND

COUNT 10: FALSE REPORTING TO THE PORTFOLIO COMMITTEE

228.Section 55(2)(a) of the PFMA prescribes:

The annual report and financial statements ... must ... fairly present the state of affairs of the public entity, its business, its financial results, its performance against predetermined objectives and its financial position as at the end of the financial year concerned.

229.Section 86(2) of the PFMA provides:

An accounting authority is guilty of an offence and liable on conviction to a fine, or to imprisonment for a period not exceeding five years, if that accounting authority wilfully or in a grossly negligent way fails to comply with a provision of section ... 55.

230.Quoted in paragraph 147 above, section 17(2)(d) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 criminally sanctions with two years imprisonment the production to the Portfolio Committee of a ‘false, untrue, fabricated or falsified document’ ‘with intent to deceive’ it.

231.On 9 October 2012, Vedalankar appeared before the Portfolio Committee at the presentation of LASA’s annual report for 2011/12 and its ‘Report on Completion of Strategic Plan 2009–2012’ in its ‘Annual Performance Report 2011–12 Briefing of Portfolio Committee on Justice and Constitutional Development 9 October 2012’. The minute of the presentation is annexed marked ‘50’.

232.In her ‘Chief Executive Officer’s Statement’ included the annual report, Vedalankar alleged: ‘Senior Litigators employed are working on complex matters in the higher courts.’ Again, in her discussion of ‘the completion of our three-year Strategic Plan period 2009–12’, she claimed: ‘To a large extent we were able to make the strategic shift that we mapped for the 2009–12 Strategic Plan (SP) period as indicated below ... We employed Senior Litigators who are working on complex matters and matters in higher courts.’

233.Vedalankar’s ‘Chief Executive Officer’s Statement’ in which she made these claims to the Portfolio Committee is annexed marked ‘51’.

234.LASA’s ‘Report on Completion of Strategic Plan 2009–2012’ alleged a third time: ‘Senior Litigators employed are working on complex matters and matters in higher courts’. A material except is annexed marked ‘52’.

235.These statements about the employment of Senior Litigators were intended to imply to the Portfolio Committee and to induce its members to believe that LASA’s Strategic Plan 2009–12 regarding the recruitment of Senior Litigators to handle complex constitutional and other specialist litigation and to mentor LASA’s legal staff in conducting it had been successfully implemented and completed.

236.Indeed, Vedalankar’s claim in her CEO ‘Statement’ at the head of the annual report that ‘Senior Litigators employed are working on complex matters in the higher courts’ was immediately preceded by her statement: ‘Our specialist capacity to cover commercial crimes courts, labour courts, sexual offences courts and children’s matters is in place and practitioners are continuously trained in handling these specialist matters.’ The ‘Report on Completion of Strategic Plan 2009–12’ falsely alleged likewise, under the heading making the false claim, ‘2009–12 period legal services delivery shift achieved’.

237.In truth and in fact, contrary to Vedalankar’s dishonestly false CEO ‘Statement’ to the Portfolio Committee about this, falsely repeated in the ‘Report on Completion of Strategic Plan 2009–12’, such ‘specialist capacity’ wasn’t ‘in place’, inasmuch as three out of LASA’s nine budgeted and funded Senior Litigator posts were still unfilled, then six years after the creation of the nine posts by resolution of the Board in November 2006. As a result of recruitment corruption and a disintegrated attempt to cover it up, KwaZulu-Natal had – and still has – no such ‘specialist capacity’ at all, and the Eastern Cape’s ‘specialist capacity’ was and remains seriously constrained – now ten years after the selection and recommendation of suitable candidates for appointment to the Pietermaritzburg, Durban and Mthatha Senior Litigator posts.

238.For the same reason, Vedalankar lied in her CEO ‘Statement’ in implying that LASA’s legal ‘practitioners are continuously trained in handling these specialist matters’ in KwaZulu-Natal, as in other provinces. In truth and in fact, as a result of recruitment corruption and its cover-up, KwaZulu-Natal has no Senior Litigators to ‘train’ them at all, i.e. to ‘Develop the litigation expertise within the LAB by providing individual mentoring and coaching to legal staff’, as envisaged in the advertised job description (annexure ‘8’); to ‘provide support for practitioners in more complex matters’, as the respondent’s Annual Report 2009/10 puts it – a material excerpt of which is annexed marked‘53’; and for ‘protecting the rights of women and children ... In very complex matters, our Senior Litigators provide support and advice to practitioners that need it’, per LASA’s press release in March 2012, annexed marked ‘54’.

239.As mentioned above, Note 30 of the Approval Framework (annexure ‘30’) records that the Board, as LASA’s accounting authority under section 1 of the PFMA, duly ‘delegate[d] to the Chief Executive Officer all the powers entrusted or delegated to the accounting authority in terms of the Act’ on 24 November 2007 under section 56(1)(a).

240.Having regard to her claims to me in her correspondence in October 2010 and January 2011, confirmed on affidavit on 5 April 2011, Vedalankar well knew that in making substantially false and deliberately misleading claims about LASA’s employment of Senior Litigators and its specialist legal professional capacity being ‘in place’, LASA’s ‘annual report’ did not ‘fairly present the state of affairs of the public entity, its business, its financial results, its performance against predetermined objectives and its financial position as at the end of the financial year concerned’, per the language of section 55(2)(a) of the PFMA.

241.In the premises – by dishonestly misrepresenting ‘the state of affairs of [LASA], its business, its financial results, its performance against predetermined objectives [set out in its Strategic Plan 2009–12] and its financial position as at the end of the financial year concerned’ in LASA’s ‘annual report and financial statements’ for 2011/12, so as to mislead and defraud LASA’s constitutional oversight authority, the Justice Portfolio of the National Assembly, and induce it to wrongly believe that (i) LASA’s Strategic Plan 2009–12 regarding the employment of Senior Litigators had been implemented and that such specialist legal service delivery capacity was now ‘in place’, (ii) LASA had filled its vacant posts, especially its critical posts, and (iii) LASA was applying its Senior Litigator budget to the employment of Senior Litigators – Vedalankar criminally contravened section 55(2)(a) of the PFMA, for which under section 86(2) she’s liable to be jailed for five years.

242.In the premises further, Vedalankar’s untruthfully false reporting to the Portfolio Committee in the Report on Completion of Strategic Plan 2009–12 criminally contravened section 17(2)(d) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004, for which she’s liable to be jailed for two years.

COUNT 11: LYING TO THE PORTFOLIO COMMITTEE

243.Quoted in paragraph 157 above, section 17(2)(e) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 criminally sanctions wilfully furnishing the Portfolio Committee with information, or making a statement before it, which is false or misleading, with two years imprisonment.

244.On 9 October 2012, Vedalankar appeared before the Portfolio Committee to present LASA’s annual report for 2011/12, mentioned in the preceding Count. The minute of the meeting is annexed marked ‘55’.

245.The minute records that ‘Mr Jeffrey asked about the discrepancy between staff and number of posts in terms of their expenditure in their budget for each’.

246.For the following several reasons, Vedalankar well understood Jeffery to be alluding to LASA’s illegal failure to have filled its remaining vacant, budgeted and funded Senior Litigator posts with the suitably qualified and experienced lawyers selected and recommended for them, and its illegal failure to have duly applied the millions of rands it was receiving annually from the Treasury to paying their salaries. That is, Vedalankar well appreciated that Jeffery was alluding to her and Nair’s illegal abortion of the three Senior Litigator recruitments for Pietermaritzburg, Durban and Mthatha, and to their illegal freezing of the posts – a matter about which I’d complained directly to Jeffery on the telephone in 2011.

247.First: I’d brought this to the attention of the chairperson of the Portfolio Committee on 25 February 2011, by copying him my third petition to the Board, and he’d responded by requiring Mlambo JP and Vedalankar to account. The Portfolio Committee chairperson’s letter to Mlambo JP about this is annexed marked ‘56’. Mlambo JP’s covering letter under which he delivered his response is annexed marked ‘57’.

248.Vedalankar didn’t herself respond as the Portfolio Committee chairperson had required of her, but in his evidence in the Labour Court in mid-2013, Nair testified that he gave her the response he’d ghost-written for Mlambo JP, to pass on to him to give the chairperson of the Portfolio Committee (annexure ‘6’, pages 352–4). And the response that Nair drew and Vedalankar passed on to Mlambo JP to sign and submit repeated the budgetary insufficiency lie. A material excerpt of this response is annexed marked ‘58’. The many demonstrably false allegations made in it are the subject of a gross misconduct complaint against Mlambo JP pending before the JSC’s JCC, accessible online at illegal‑aid.co.za/JSC.

249.Second: Vedalankar also knew that Jeffery was aware of her and Nair’s unlawful failure to finalize LASA’s successful, substantially complete recruitments to its Pietermaritzburg, Durban and Mthatha Senior Litigator posts, because the year before on 31 March 2011 he’d specifically enquired about ‘the vacancy rate ... at professional assistant [Senior Litigator] level’ and on 11 October 2011 pointedly raised the fact, which I’d reported to him, that LASA wasn’t ‘spending the money allocated to impact litigation’ – the job ‘specifically of our Senior Litigators’, as Hundermark confirmed at the meeting.

250.Third: Refusing to comply with a PAIA request I made in April 2019 testing the veracity Vedalankar’s claims to the Portfolio Committee at this meeting on 9 October 2012, Hundermark confirmed that in responding to Jeffery’s query, Vedalankar’s reference to ‘those positions’ was precisely to LASA’s three remaining vacant Senior Litigator posts. My request and Hundermark’s refusal of it, in order to obstruct my corruption investigation and to aid and abet Vedalankar’s evasion of accountability for her criminal lies to the Portfolio Committee, are annexed marked ‘59’ and ‘60’ respectively.

251.The minute of the meeting records Vedalankar response to Jeffery’s enquiry as follows:

In terms of the discrepancy with the posts and employees, it was very clear in the report. They had allocated a certain amount of funds but they knew that those positions could not be filled so they adjusted the budget.

252.LASA’s annual report to the SAHRC for 2010/11 under section 32 of PAIA included a similar lie: ‘the decision to freeze the [Pietermaritzburg Senior Litigator] post due to change in business needs budget.’ The false report is annexed marked ‘61’.

253.In my labour case, LASA in-house attorney Mtati likewise swore regarding the Mahikeng Senior Litigator, recommended for transfer to the new Mthatha post, that ‘after the interview of the Applicant in KZN [Brink] had taken place’, it was ‘later decided not to also proceed with this transfer as it had become important to divert the funds budgeted to a different project’ (annexure ‘3’, page 28). Requested under PAIA, no record of any such decision has been forthcoming. Which is to say the allegation was casually perjured in the usual LASA manner.

254.Had Vedalankar told the Portfolio Committee the truth and not a criminal lie in claiming that ‘those positions could not be filled’ (i.e. LASA’s remaining three vacant budgeted and funded Senior Litigator posts) with the result that ‘they adjusted the budget’, in other words deviated from the Board’s Strategic Plan and from executive management’s Business Plan based on it, and reallocated the budget for the three posts to another cost centre, section 1.1 of the Approval Framework (annexure ‘30’) would have required the Board’s ‘Final approval’; section 1.2 would have required that the Board ‘be consulted (before)’ executive management changed the Business Plan; and section 2.3 governing ‘Reallocation of budget – Operational expenditure’ and more specifically ‘Reallocation of budget in excess of 8% between cost centres’ would have required Board approval, seeing as one third, 33.3%, of the Senior Litigator salary budget was involved.

255.But in Nair’s April 2011 affidavit (annexure ‘1’, paragraph 36), confirmed by Vedalankar (annexure ‘2’), Nair stated (justifying it spuriously) that ‘The Board was ... not informed of the decision.’ That is, the Board wasn’t even told about his and Vedalankar’s deviation from the Strategic Plan by deciding off the record to indefinitely, and in the result permanently, freeze recruitment to three vacant Senior Litigator posts, comprising one third of LASA’s Senior Litigator establishment, much less was it ‘consulted (before)’ changing the Business Plan to employ Senior Litigators in all nine posts for them, including the thrice-advertised Pietermaritzburg and Durban posts. (The first recruitment process had failed, and the critical posts were then twice again advertised. The first advertisement is annexure ‘8’; the second and third advertisements are annexed marked ‘62’ and ‘63’.) Nor was the Board asked to approve the reallocation of a third of the budget for this key component of the Strategic Plan 2009–12, right after it had just approved (annexure ‘17-V10’) executive management’s ‘Report to Board’ in July 2010 (annexure 17-V10-Annexure 1’) proposing that recruitment to such critical posts be prioritised (section 2.2(b)).

256.Only in November 2011, well over a year after Vedalankar’s and Nair’s final illegal off-the-record abortion of the three Senior Litigator recruitments and their freezing of the posts allegedly for financial reasons, was the Board told under mounting pressure about this decision. Except that in his ‘Report to Board’, stating this in a buried note, Nair fabricated new, totally different false reasons for not filling the posts. Leaked to me by a sympathetic insider at LASA, Nair’s November 2011 ‘Report to Board’ is annexed marked ‘64’. He admitted authoring it at the trial of my labour claim (annexure ‘6’, page 359). I’ll revert to this.

257.Contradicting and refuting Vedalankar’s criminal lie to the Portfolio Committee, LASA’s own financial records show that in truth and in fact there’s never been any ‘change in business needs budget’ concerning the Pietermaritzburg Senior Litigator post and those at Durban and Mthatha; and they show that LASA never ‘adjusted the budget’ because ‘those positions could not be filled’, or for any other reason.

258.On the contrary, since their creation by Board resolution in November 2006, LASA has applied and continues applying to the Department every year, and has received and continues receiving millions of rands from the Treasury every year in salary funding for all nine of its Senior Litigator posts, including its three now very long vacant Pietermaritzburg, Durban and Mthatha/Kimberley posts. A sample of these Senior Litigator salary budget applications for the financial years 2010/11 to 2014/15 are bundled and annexed marked ‘65’.

259.I’m unable to put up any payment vouchers because although I’ve duly requested them under PAIA, Hundermark is suppressing them illegally and unconstitutionally to hinder my exposure of the corruption I’ve uncovered at LASA, in which he’s complicit, on the fullest available evidence.

260.But in stating ‘They had allocated a certain amount of funds but they knew that those positions could not be filled so they adjusted the budget’, Vedalankar conceded that the budgeted Senior Litigator salary funds were indeed received. LASA in-house attorney Mtati did likewise in deposing that ‘after the interview of the Applicant in KZN [Brink] had taken place’ in November 2009 (annexure ‘17-V7’) and the interview of the Mahikeng Senior Litigator had taken place in May 2010 (annexure ‘15’) to consider his transfer to the just created Senior Litigator post at Mthatha, it was ‘later decided not to also proceed with this transfer as it had become important to divert the funds budgeted to a different project’ (annexure ‘3’, page 28).

261.Contradicting and refuting Vedalankar’s criminal lie to the Portfolio Committee that ‘They had allocated a certain amount of funds [true] but they knew that those positions could not be filled [false] so they adjusted the budget [false]’, LASA confirmed truthfully in my labour case (as indeed LASA’s financial records vouch) that ‘there was no re‑allocation of any budget between costs centres’, i.e. the budget for the allegedly frozen Senior Litigator posts was not transferred to any other cost centre. Annexure ‘7’ is a material excerpt of LASA’s pleading in this regard (see paragraph 2.6).

262.Diametrically contradicting and abandoning the original budgetary insufficiency lie she’d repeatedly told me, including under oath in April 2011, Vedalankar implicitly truthfully confirmed in her response to Jeffery’s query that LASA had indeed received the salary funding that the National Assembly had allocated for all its budgeted posts, both filled and vacant, including its three remaining vacant critical Senior Litigator posts at Pietermaritzburg, Durban and Mthatha/Kimberley – only, according to Vedalankar’s criminally false information to the Portfolio Committee, some unspecified insurmountable difficulty, which ‘they knew’, prevented the due expenditure of this budgeted salary funding that LASA had received from the Treasury via the Department on hiring suitable candidates to fill the posts, so, for this unspecified reason which ‘they knew’ LASA had resolved to divert and apply this unspent salary budget for the top posts to another cost centre.

263.It’s certain for two reasons that Vedalankar couldn’t have meant and in fact didn’t mean that after LASA received its salary budget for the employment of three Senior Litigators at Pietermaritzburg, Durban and Mthatha, some intractable problem prevented LASA filling these three posts, leading it to adjust its next budget for the following financial year, so as to make provision only for six incumbent Senior Litigator salaries, and no longer nine such salaries including for three vacant posts. It’s certain, first because Vedalankar didn’t claim to the Portfolio Committee that the three long-vacant Senior Litigator posts had been abolished, and they haven’t been; and second because in the following years LASA continued budgeting for salary funding for all nine Senior Litigator posts in its staff establishment, as LASA’s budget applications for the financial years 2010/11 to 2014/15 show (annexure ‘65’). (I would have requested and put up more such budgets, running on to the current financial year, but to aid and abet in the corruption cover-up, Hundermark is reflexively refusing to comply with my PAIA requests on the dishonestly false basis that they’re all a deliberate obvious waste of LASA’s time, and therefore hit by section 45, allowing the refusal of ‘manifestly frivolous or vexatious requests’.)

264.Nor could Vedalankar have been referring to LASA’s Legal Services Technical Committee’s resolution in March 2011 to abolish the long vacant, unnecessary Kimberley Senior Litigator post (reportedly no demand for it), and to create a new such post at Mthatha (where it was sorely needed for several cogent reasons motivated by the Regional Operations Executive), and to transfer the salary budget from the old post to the new. Vedalankar couldn’t have been referring to this because in the result, although the new Mthatha post was immediately recruited for and a suitable candidate selected for it, the budget wasn’t actually transferred. LASA’s occupancy and vacancy statistics show the budgeted and funded Kimberley post still vacant in December 2010 (annexure ‘19’). That is, LASA’s budget for the Kimberley Senior Litigator post wasn’t ‘adjusted’.

265.Also, Vedalankar mentioned a number of ‘positions’: plural – just like Nair did in his ‘Report to Board’ of November 2011 (annexure ‘64’), dishonestly falsely claiming (among his other lies) that ‘recruitment challenges’ prevented the filling of LASA’s three remaining vacant Senior Litigator posts at Pietermaritzburg, Durban and Mthatha, whereas in truth and fact three eminently qualified and experienced candidates had been selected and recommended for the three respective posts.

266.The records show that only ‘recruitment challenges’ preventing any Senior Litigator recruitment were in respect of the Kimberley post. No suitable applicant was attracted by first advertisement for it, along with the other eight posts, in October 2007 (annexure ‘8’), nor by the readvertisement of the post in May 2009. A copy of the latter is annexed marked ‘66’. The result is that in November 2009, the Regional Operations Executive, mentioning this problem (mentioning also an unsuccessful internal, third advertisement) and the fact that there’d never been a need for the post at Kimberley, motivated for the transfer of the post to another centre where it might be ‘required’. His motivation is annexed marked ‘67’. In February 2010, Nair’s Legal Services Technical Committee invited applications for the transfer of the post to any region needing it. The minute is annexed marked ‘68’. In March 2010, the Eastern Cape motivated for its transfer to Mthatha. The motivation is annexed marked ‘69’. And later that same month on the 24th the LTSC agreed; resolved to abolish the Kimberley post and create a new one at Mthatha; and ordered that the new post be advertised immediately (annexure 13’). As indeed it was the following month in April (annexure ‘14’). And successfully interviewed for in May (annexure ‘15’).

267.But to the Portfolio Committee, as Nair did to the Board, Vedalankar lied that LASA had been challenged in recruiting for the vacant Senior Litigator posts in question: at Pietermaritzburg, Durban and Mthatha despite the selection and recommendation of suitable candidates to fill the posts at thiose centres.

268.Besides that (i) LASA had indeed, in truth, budgeted for salary funding for all its vacant and occupied posts, as it was bound to do under section 53(4) of the PFMA; and, (ii) as truthfully implied by Vedalankar, such salary funding had indeed been allocated by vote of the National Assembly and paid to LASA by the Treasury via the Third Party Funds division of the Department for the financial year in question, like all other years, every other statement Vedalankar made to the Portfolio Committee, quoted here, was a lie told to deceive it.

269.First, ‘the discrepancy with the posts and employees’ was not ‘very clear in the report’ at all; even less did it clearly state or indicate that ‘They had allocated a certain amount of funds but they knew that those positions could not be filled so they adjusted the budget.’ In truth and in fact, there was nothing at all in the annual report about any problems filling any of LASA’s posts and about adjusting the budget, much less was it ‘very clear in the report’. Here was Vedalankar stupidly dishonestly improvising and telling a bare-faced lie to the Portfolio Committee to put it off pursuing Jeffery’s enquiry, which she well understood concerned the illegal abortion of the substantially complete recruitment processes for the three remaining vacant Senior Litigator posts and LASA’s illegal failure to fill the posts using the budgeted funding that LASA had received for them, year after year.

270.Second, in truth and in fact, nothing prevented the filling of any budgeted and funded vacant posts, especially the Senior Litigator posts at Pietermaritzburg, Durban and Mthatha, for which three suitable candidates had been selected and recommended. It certainly wasn’t any lack of salary funding received from the Treasury via the Department, because LASA’s financial records show that the posts have always been and remain budgeted and funded.

271.Although inessential to this criminal charge, the true unlawful reason why the substantially complete recruitment processes for the three posts was aborted off the record, and the three posts indefinitely ‘frozen’ off the record, was to maintain a recruitment cover-up by illegally keeping them unfilled year after year on the false basis originally alleged to me that LASA hadn’t received the expected budget to fill the posts. This is the true reason the posts hadn’t been filled and why Vedalankar lied to the Portfolio Committee to cover it up.

272.To gin up her basic lie that ‘those positions could not be filled so they adjusted the budget’, and to make it sound more convincing, Vedalankar told the Portfolio Committee an additional lie: ‘they knew’ this, when in truth and fact, ‘they’ (she, Nair and her national office colleagues) didn’t; ‘they knew’ very well that nothing stopped the posts being filled with the eminently qualified and experienced candidates selected and recommended for them – nothing besides recruitment corruption and its criminal cover-up

273.Contrary to Vedalankar’s criminal lie to the Portfolio Committee about this, in truth and in fact there were no vacant posts in its staff establishment that LASA found impossible to fill – and particularly not its remaining three unfilled Senior Litigator posts for which selection panels had interviewed and recommended suitable candidates for the Pietermaritzburg and Durban posts in November 2009 and for the Mthatha one in May 2010.

274.Although Vedalankar didn’t specify the reason ‘they knew that those positions could not be filled’, it’s likely she had in mind the new lying cover-story Nair had concocted to replace the old obviously unsustainable budgetary insufficiency one, which new lie, among others, he told in his ‘Report to Board’ in November 2011 (annexure ‘64’), namely that ‘recruitment challenges’ prevented the filling of the posts.

275.Consistently with this new lie – ‘they knew that those positions could not be filled’ – Nair falsely alleged in an affidavit he made in my PAIA litigation against him in the Eshowe Magistrate’s Court (opposition to it finally abandoned at court at the point of argument) that the Senior Litigator post for which I’d applied had been ‘aborted for operational reasons’, not financial reasons as originally alleged to me. Material excerpts of his affidavit are annexed marked ‘70’. (The profusion of criminal lies Nair told in the cover-up will be treated in a separate criminal complaint against him and in a complaint to the Legal Practice Council for his strike-off as an advocate.)

276.In telling the Portfolio Committee these criminal lies of hers, Vedalankar’s intention was to misinform and mislead it to pervert its enquiry into LASA’s illegal failure to have spent its funding allocation by the National Assembly in accordance with its budget, by falsely claiming that a valid albeit unstated reason existed for not filling its remaining long vacant Senior Litigator posts.

277.By telling her criminal lies to the Portfolio Committee, Vedalankar successfully frustrated its exercise of its constitutional oversight function over LASA and prevented it remedying the serious illegality of which I’d complained to Jeffery the year before.

278.The minute reflects that, knowing the truth, Jeffery very correctly didn’t accept and believe the lies Vedalankar told him (i) to pretend that LASA was duly spending its salary budget and (ii) to conceal her and Nair’s criminally illegal, unauthorised, off-the-record final decision in July 2010 to abort the three substantially complete Senior Litigator recruitments for Pietermaritzburg, Durban and Mthatha and to freeze the posts. Aware that she was lying, and correctly insisting otherwise, ‘Mr Jeffery said that the expenditure could not be 99% with the [post occupancy] figures that they had.’

279.The minute further records that ‘Ms Vedalankar said she would send the information to the Committee’ – in addition to the ‘very clear’ information alleged to have been contained ‘in the report’ – to persuade Jeffery, and to overcome his well-justified disbelief of her lying claim that ‘They had allocated a certain amount of funds but they knew that those positions could not be filled so they adjusted the budget.’

280.Seeing as she repeatedly told lies on other scores in her address – including that the Portfolio Committee had been sent LASA’s quarterly reports, which lie she retracted and then apologised for when Jeffery challenged it – and she’d previously lied to the Portfolio Committee as detailed above, it’s highly likely that Vedalankar’s undertaking to ‘send the information to the Committee’ was false, and was given with no intention of honouring it and only to escape the pinch of Jeffery’s enquiry threatening to expose her criminal and otherwise illegal off-the-record abortion of the three Senior Litigator recruitments in question and her freezing of the posts (no record of the decision; ultra vires her powers; an unauthorised deviation from the Business Plan and Strategic Plan; and criminally illegal under the PFMA).

281.If Vedalankar did ‘send the information’ to the Portfolio Committee after the meeting, there will be a record of this. (I’m unable to access it myself or have it confirmed under section 23 that no such record exists, because, as mentioned above, to obstruct my corruption investigation and to protect Vedalankar from being held criminally accountable for her lies to the Portfolio Committee on the fullest available evidence, Hundermark has illegally and unconstitutionally denied my duly made request for access to relevant records in this regard.)

282.In the premises, to frustrate and defeat the Portfolio Committee’s constitutional oversight function and to maintain the cover-up of the criminally illegal abortion of the Pietermaritzburg, Durban and Mthatha recruitments and freezing of the posts, Vedalankar wilfully furnished the Portfolio Committee with false and misleading information, and thereby criminally contravened section 17(2)(e) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004, for which she’s liable to be jailed for two years.

COUNT 12: LYING TO THE PORTFOLIO COMMITTEE

283.At the 9 October 2012 meeting, besides telling the Portfolio Committee her new different lies about why the remaining vacant three Senior Litigator posts hadn’t been filled so as to cover the top-level recruitment corruption in which she was involved – the old lie being that LASA hadn’t received sufficient budget, the new lie being that because LASA had trouble filling them it ‘adjusted’ the budget it had received for them – Vedalankar also told the Portfolio Committee several criminal lies to cover her and Nair’s repeated illegal and unconstitutional refusals to comply with my PAIA requests to obstruct my investigation of this corruption.

284.   Among my persistent complaints to the SAHRC’s PAIA Unit about Vedalankar’s and Nair’s illegal and unconstitutional refusals of my first three PAIA requests made in 2010 and 2011, I’d protested also that LASA’s had made false annual reports for 2010/11 and 2011/12 under section 32 of PAIA to conceal this.

285.   Had LASA duly reported its handling of my PAIA requests in 2010 and 2011 to the SAHRC under section 32, the Portfolio Committee would have been alerted via the SAHRC’s section 84 reports for 2010/11 and 2011/12 to Vedalankar’s and Nair’s illegal refusals of my PAIA requests and to their repeated violation of my fundamental right to information in determinedly suppressing LASA’s business records that I wished to examine in my investigation of the circumstances in which my recruitment had been aborted and the true reason for it.

286.   LASA’s repeated false annual reporting under section 32 was therefore a further extremely serious additional layer of the cover-up, contrived to obstruct and defeat the Portfolio Committee’s constitutional oversight function over LASA.

287.   Finding that indeed neither section 32 report complied with the detailed reporting requirement of the section and did not reflect LASA’s unlawful refusals of my requests, the SAHRC reported this to the National Assembly in its section 84 report for 2011/12:

A case in point [of false section 32 reporting by public bodies is] where a complainant [Brink] brought to the attention of the Commission a number of requests made to LASA which were not reported in LASA’s 2010/11 section 32 report despite the fact that the requests were made in that financial year. ... The Commission engaged with LASA and remains concerned about the accuracy of section 32 reporting by LASA.

A material excerpt of the report is annexed marked ‘71’.

288.  At LASA’s said October 2012 meeting with the Portfolio Committee, its annual report was presented by Board member Jan Maree. In full knowledge of the true facts, having received and acknowledged my first petition to the Board of 30 November 2010 protesting and substantiating exactly the opposite, the minute (annexure ‘55’) records Maree’s outright lie told to the Portfolio Committee that LASA had achieved ‘100% … compliance with the Promotion of Access to Information Act’. A material excerpt of my petition (paragraphs 17–43) regarding Vedalankar’s illegal and unconstitutional total refusal of my first PAIA request in August 2010, in which petition I laid bare her spurious, indeed fraudulent grounds for refusing it, is annexed marked ‘72’. Maree’s acknowledgment of receipt of this petition is annexed marked ‘73’.

289.  Quite correctly the Portfolio Committee didn’t believe attorney Maree’s criminal lie to it about LASA’s ‘100% ... compliance with’ PAIA. On the contrary, its members repeatedly voiced their concern over LASA’s non‑compliance with the Act.

290.  Immediately after Vedalankar’s address, Jeffery cut straight to the SAHRC’s PAIA report:

Mr Jeffery (ANC) said … it was the Committee’s job to make sure they did oversight. He was curious about a Promotion of Access to Information Act (PAIA) report that was released that stated the South African Human Right Commission was unhappy with LASA and their cooperation in terms of PAIA.

291.  Since the SAHRC’s section 84 report mentioned only LASA’s defective annual section 32 reporting, not its substantive non-compliance with my first three PAIA requests (the ‘unlawfulness’ of which the SAHRC had noted in June 2011), Jeffery clearly had in mind my telephonic complaint to him about Vedalankar’s and Nair’s repeated refusal to comply with my PAIA requests. And as her reply revealed, Vedalankar understood perfectly that Jeffery was indeed referring to her and Nair’s persistent illegal obstruction of my constitutionally guaranteed right of access to LASA’s public records, in service of a top-level criminal corruption cover-up.

292.  The Portfolio Committee chairperson also raised the SAHRC’s adverse PAIA report regarding LASA – the only matter of concern to him that he raised during the presentation: ‘The Chairperson told the [LASA] delegation that they would arrange for Legal Aid to view the PAIA report.’

293.  When Vedalankar tried silently evading the SAHRC’s negative report, pertinently raised by Jeffery as well as by the chairperson, the latter called her to account: ‘The Chairperson said that he wanted to know about the PAIA report.’

294.  With the corrupt intention of discrediting the SAHRC’s adverse PAIA report on LASA, with the ultimate purpose of concealing her and Nair’s repeated and persistent illegal refusals of my PAIA requests to obstruct my investigation and refutation of the fake budgetary insufficiency excuse she’d repeatedly fed me, including under oath, about why my appointment had been aborted, Vedalankar responded with a string of lies:

Ms Vedalankar said she was very unhappy with the PAIA report because it was untrue. Legally one could not use PAIA when one was in court and there was going to be an official judgment about this.

295.  In truth and in fact, contrary to Vedalankar’s criminal lies to the Portfolio Committee, the SAHRC’s report was perfectly true. LASA had indeed repeatedly failed to comply with its reporting obligations prescribed by section 32; and its false and defective, non‑compliant reporting of its unlawful refusals of my PAIA requests about which I’d complained is apparent on the face of LASA’s section 32 reports for 2010/11 and 2011/12, having regard to the specific, detailed information the section required. The 2010/11 report is annexure ‘61’, and the 2011/12 report (containing no mention of Nair’s unlawful response in April 2011 to my third PAIA request the month before, in which he illegally and unconstitutionally refused me access to several duly requested records, on spurious grounds later abandoned) is annexed marked ‘74’. (The multiple specific respects in which the 2010/11 report failed to comply with section 32 are enumerated in my Special Report to the SAHRC, accessible online at illegal‑aid.co.za/PAIA.)

296.  At the Portfolio Committee’s next meeting with the SAHRC shortly afterwards on 3 December 2012, Jeffery raised Vedalankar’s repudiation of the SAHRC’s allegedly ‘untrue’ section 84 report concerning LASA’s non-compliance with section 32:

Mr Jeffery asked for more detail on the compliance monitoring audits. The Commission complained about Legal Aid South Africa (LASA) on page 29 of the report, yet when this point was raised with LASA, it had responded that it was not happy with the SAHRC report, and disputed the findings.

297.  SAHRC deputy information officer and PAIA Unit head Dr Fola Adeleke forthrightly rejected Vedalankar’s false repudiation of the report and confirmed that it was correct:

Mr Adeleke answered the question of LASA disputing the SAHRC’s report. He said that LASA could not dispute the finding, because the Commission had shown the PAIA report that they had omitted. The PAIA request was sent to LASA, and it was requested to report on it. However, LASA maintained that this request should have been done during the last reporting period, whereas SAHRC held the view that this fell within the current reporting period.

298.  In response to Adeleke’s information to the Portfolio Committee that the SAHRC had pertinently called on LASA to report its handling (in April 2011) of my PAIA request (in March), which it had shown it, but that LASA had refused to do so (which is exactly what happened), ‘Mr Jeffery said that the detail was useful and the Committee should get more information and put it to LASA.’ It’s clear from this that Jeffery remained dissatisfied that Vedalankar’s repudiation of the SAHRC’s section 84 report was truthful.

299.  A material excerpt from minute of the meeting is annexed marked ‘75’.

300.  Apart from being false and misleading on multiple scores, Vedalankar’s statement to the Portfolio Committee, ‘Legally one could not use PAIA when one was in court’, made to discredit the SAHRC’s report of LASA’s false annual reporting under section 32, was irrelevant and no answer to the SAHRC’s reported findings that LASA had repeatedly failed to comply with its reporting obligations under section 32.

301.  It’s clear that in answering in this particular way Vedalankar had in mind my PAIA requests, which she and Nair had persistently illegally and unconstitutionally refused, and about which she knew I’d repeatedly complained to the SAHRC. That is, Vedalankar was well aware that the SAHRC was alluding in its section 84 report to my repeated complaints to it about her and Nair’s persistent illegal and unconstitutional refusals of my PAIA requests, i.e. their primary substantive non-compliances with them, and not just to LASA’s (her, as information officer) repeated non-compliances with its (her) secondary reporting obligations under section 32 in making its (her) annual reports as information officer. The SAHRC’s section 84 report to the National Assembly inexplicably didn’t deal with her and Nair’s substantive non‑compliance with PAIA, only with LASA’s false and misleading reporting afterwards to conceal this.

302.  Vedalankar’s answer, ‘Legally one could not use PAIA when one was in court’, was dishonestly false and calculated to mislead the Portfolio Committee on two scores.

303.   First, when I made my first three PAIA requests in August and December 2010 and March 2011, I wasn’t yet ‘in court’, and only went to court later that year in July 2011, as I mentioned in my letter to the Board that month (annexure ‘49’), claiming my instatement to the top legal professional post for which I’d been unanimously selected and recommended.

304.  Second, even had I been ‘in court’ when I made my PAIA requests, which I wasn’t, any documents thus irregularly obtained would have been potentially admissible with the special leave of the judge under section 7(2) of PAIA. That is, a requester being ‘in court’ is no justification under PAIA for refusing access to a requested record.

305.  Not having yet been ‘in court’ when I made my record requests in question, neither of Vedalankar’s October 2010 or January 2011 letters raised this spurious justification for refusing them. Nor did Nair raise this in his April 2011 affidavit or covering correspondence.

306.  When I did institute action in the Labour Court later on in July 2011, and the pleadings closed with the filing of LASA’s response to my statement of claim, I duly followed the court’s discovery rules to access documents I needed for trial – against great resistance and with considerable difficulty; but LASA’s telling secrecy and reluctance to share its public records, and the round after round of legal processes to which I had to resort to overcome this, isn’t relevant to this criminal complaint.

307.  Vedalankar’s dishonest motivation for lying that I was ‘in court’ when I made my PAIA requests, when I wasn’t, was to falsely justify to the Portfolio Committee her and Nair’s illegal and unconstitutional refusals of my PAIA requests, so as to obstruct my investigation of the corrupt, criminally illegal circumstances in which my recruitment had been cancelled.

308.  Vedalankar’s claim that ‘there was going to be an official judgment about this’ (‘this’ being her claim that ‘one could not use PAIA when one was in court’) was pure invention to mislead the Portfolio Committee and pervert its enquiry. The law on the use of documents obtained via PAIA in legal proceedings after they have commenced is clearly set out by section 7 of PAIA. No such issue in my labour action was before court for decision, as Vedalankar falsely implied to the Committee. It was a crowning lie contrived to put the Committee off taxing her any further about her and Nair’s repeated non‑compliance with the Act to hide duly requested documents in furtherance of their cover-up of the recruitment corruption I was investigating. And the minute of LASA’s presentation shows that Vedalankar’s final lie achieved this.

309.  Vedalankar’s criminal lies to the Portfolio Committee to cover LASA’s non‑compliance with PAIA successfully derailed its enquiry into her and Nair’s repeated and persistent, illegal and unconstitutional violation of my fundamental right of access to LASA’s public records, and enabled her and Nair to escape being held to account for it.

310.  In other words, at her appearance before the Portfolio Committee, Vedalankar lied her way out of the trouble, namely LASA’s repeated false reporting to the SAHRC to cover her and Nair’s illegal and unconstitutional refusals to allow me access to duly requested records to obstruct my investigation of the most serious, criminal corruption at the top of LASA’s governing and executive management ranks, in which she as CEO, her next-in-command Nair, and Board chairperson Mlambo JP were all directly implicated.

311.  And by deliberately misinforming and misleading the Portfolio Committee with her lies and thereby perverting its enquiry, Vedalankar prevented it carrying out its constitutional oversight function over LASA imposed on it by section 55(2)(b)(ii) of the Constitution, thus criminally obstructing and defeating the crucial oversight machinery set in place by the Constitution to check corruption and malfeasance in the public service generally and at LASA particularly.

312.  In the premises, Vedalankar criminally contravened section 17(2)(e) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004, for which she’s liable to be jailed for two years.

Signed at Eshowe on 12 June 2020

ANTHONY BRINK

Signed before me at Eshowe on 12 June 2020 by the deponent who has acknowledged that he knows and understands the contents of this affidavit and who affirms its contents to be true to the best of his knowledge and belief.

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