In denial: Busisiwe Mkhwebane (left) is being represented by Dali Mpofu (right) in the hearings to her impeachment. Photo: David Harrison
The first days of testimony in the impeachment inquiry into suspended public protector Busisiwe Mkhwebane have, rather incidentally, delivered insight into disarray in the state’s intelligence structures as it turned to her discredited findings that there was a rogue spy unit in the South African Revenue Service (Sars).
Evidence leaders in the section 194 inquiry played a recording of Mkhwebane’s conversation with former inspector general of intelligence Setlhomamaru Dintwe and the legal adviser of that office, Jay Govender, in which she implies that she was given a copy of a classified intelligence report on the impugned Sars unit on the watch of Dintwe’s predecessor, the late Faith Radebe.
Mkhwebane was heard saying the report was “dropped in our reception”.
The 2014 Radebe report recommended that a criminal investigation be pursued against then finance minister Pravin Gordhan but was reviewed in court and set aside.
Also audible in the recording is Mkhwebane’s insistence that “the rogue unit is still operating”, in sight of the intelligence structures she believed should be investigating it. Her interlocutors remind her that they did not have the power to investigate the revenue service, drawing a threat in response that she would use her powers to ensure this happened.
Mkhwebane never conceded that she possessed the classified report, not to the Sars officials she investigated, with damning consequences, nor to the high court where her findings were set aside in one of the scathingly critical court rulings that now form part of the case for her removal from office.
Johann Van Loggerenberg, the former Sars official who headed the unit responsible for high-risk investigations, said the recording confirmed to him that Mkhwebane had the report and hence that she had lied, in violation of the ethics demanded of her both as a lawyer and the head of the chapter nine institution.
“The public protector, as a prerequisite, is also required to be an advocate, rendering her an officer of the court. In both instances, both as a prerequisite for appointment as public protector and for admission as advocate in South Africa, people are required to be fit and proper,” he said on Thursday before he was cross-examined by Mkhwebane’s counsel, advocate Dali Mpofu.
“I believe that the facts that I have put before this committee suggest that Ms Mkhwebane was not honest and factual in respect of case number 48 521 of 2019 and I don’t believe she conducted a proper investigation and that she was biased.
“I think she had already made up her mind that the unit was rogue because she referred to the unit like that, she openly stated that the persons associated with that unit, which she was still in the process of investigating, had been involved in the deaths of people and she predicted further deaths of people.”
Van Loggerenberg said the fact that Mkhwebane had failed to speak to him during the investigation, when he was the person best-placed to provide her with facts, was an indictment on the quality of the inquiry. “I can only conclude that it was either incompetence or lack of effort to even do elementary aspects of the investigation, alternatively something worse.”
He said one of several examples where he believed she may have acted fraudulently was “the withholding of the fact that Ms Mkhwebane was in fact in possession of the 2014 inspector general of intelligence report and she did not provide that to those people who were implicated in the investigation to respond to”.
Van Loggerenberg said he was ultimately vindicated in court but even there, when she had the opportunity to hear the facts he put across, Mkhwebane remained unmoved.
“It was as if I had said nothing. She didn’t respond to it, she didn’t dismiss it, she didn’t waylay it or engage with it whatsoever.” This meant that she failed to act without prejudice.
“Had Ms Mkhwebane afforded me a hearing then a lot of time and effort and money and heartache and trauma on many, many people and whatever resources had gone into that investigation and subsequent litigation in the aftermath could well have been curtailed,” Van Loggerenberg said.
The unit was shut down in 2014 by then Sars commissioner Tom Moyane. Van Loggerenberg said the country would have known the true facts instead of a false narrative that furthered the subversion of Sars in the state capture scandal.
“It is my view that the investigation was not an investigation, it was something else,” he added.
The Pretoria high court, in a judgment delivered in 2020, found that Mkhwebane “allowed her important office to be used to try and resuscitate a long-dead fake news propaganda fiction”.
On Wednesday, after the recording was played, Van Loggerenberg remarked with irony that the conversation centred more on concerns about rogue elements in state intelligence — there is mention of some 150 operatives without valid contracts and the fact that surveillance equipment mysteriously went missing — than about the Sars unit.
Dintwe alluded to being prevented from investigating the alleged destruction of documents at the State Security Agency (SSA). Govender mentioned the multiplicity — and hence unreliability — of SSA asset registers.
The recording carries an echo of the testimony on abuses in the SSA that was last year made to the state capture inquiry and prompted a recommendation by Chief Justice Raymond Zondo that criminal investigations into the Principal Agent Network set up by Arthur Fraser be resumed. These had been halted at the behest of then president Jacob Zuma.
Van Loggerenberg said it was alarming that these “deep cover agents or sleepers or co-workers, whatever they are called” had infiltrated parastatals, state departments and even law enforcement structures.
He was patronised by Mpofu, who questioned his credentials and his integrity, and accused him of lying when he said that Mkhwebane called the unit he headed “rogue”.
Van Loggerenberg insisted that she had, and that the court rulings setting aside her findings were definitive. Mpofu described the judgments as “opinion”.
But the person Mpofu is most plainly trying to embroil in the inquiry in an effort to challenge its lawfulness is President Cyril Ramaphosa.
He argued on Monday that the president’s suspension of Mkhwebane on 9 June was done prematurely and despite a conflict of interest because he is the subject of several investigations by her office.
Mpofu said the committee was misguided in thinking the suspension had nothing to do with it, because it tainted the whole process. He was attacking the legitimacy of the inquiry from the most readily available legal angle, given that Mkhwebane is challenging her suspension, whereas the courts have settled other objections she raised in some R67-million worth of litigation aimed at escaping impeachment for misconduct and incompetence.
Mpofu said he would fight to have the president compelled to testify before the inquiry on a submission to court by his lawyer, Peter Harris, that Mkhwebane had lied to find the president had flouted the executive code of ethics.
The report in question dealt with funding for his campaign to be elected president of the ANC. Mkhwebane recommended that Ramaphosa be investigated for money-laundering. It led to one of the most withering court findings against her, where the former constitutional court judge, Chris Jafta, wrote that her mistake suggested mala fides.
In a statement responding to a call by United Democratic Movement leader Bantu Holomisa, Ramaphosa this week said there was no need for him to appear before the committee.
On Thursday morning, Corné Mulder, of the Freedom Front Plus, said it appeared Mpofu planned to use Stalingrad tactics to ensure the committee was still sitting by October 2023, when Mkhwebane’s term of office would expire.
Mpofu said this was not true.
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