The suspended public protector told him she would pleased if the probe into the scam delivered no adverse findings, Reginald Ndou tells inquiry.
Suspended public protector Busisiwe Mkhwebane was deaf to repeated pleas from senior staff to consider reports that the Gupta family had pocketed millions from the Vrede dairy farm project in her investigation into the scam, a witness told the section 194 inquiry into her removal on Thursday.
Reginald Ndou, former executive manager for the provincial investigation unit in the office of the public protector, said not including information relating to the R280-million project in the cache of emails would render the report vulnerable to review.
Therefore, he had raised it in an email to Mkhwebane and senior colleagues on 17 September 2017, along with his concerns that then Free State premier Ace Magashule was distancing himself from what had transpired in Vrede and submitting evasive answers to questions on the subject.
“They did not include the kind of detail and supporting documentation that we required,” he said.
“I was also of the view that perhaps, from the premier’s office, there was a disengagement from taking responsibility for what had happened in that project.”
Turning to his mention in the email of the Gupta leaks, which surfaced in June that year, Ndou said he found it troubling that the report referred to these in a single line, and only to say that it was not relevant to the investigation.
“I specifically addressed this issue to say that we still have this one-liner which says that we have noted the Gupta leaks emails, but they do not form part of the scope of this investigation.
“I felt in my view that this was dismissive of the allegations in the newspaper articles, since some of the monies were alleged to have been used for other purposes, other than the intended beneficiaries, and I indicated that this might then be a ground for review, on the basis that this is a perfunctory approach that goes against what was enunciated in the Mail & Guardian case.”
In the case in question, the supreme court of appeal in 2011 upheld a high court ruling that had set aside former public protector Lawrence Mushwana’s report on the so-called Oilgate saga because he failed to conduct a proper investigation, commenting: “An investigation that is not conducted with an open and enquiring mind is no investigation at all.”
Ndou said this had made plain that there was an obligation on the public protector to probe all relevant information.
Hence, he feared it could be faulted “for not following where the evidence leads” should it ignore reports that the emails exposed the Guptas’ links to Estina, the company given a free lease on land and R144-million to set up the project in Vrede to empower local farmers.
It was reported in late June that R84-million had landed in the Guptas’ Standard Chartered bank account in Dubai. Ndou said he noted media reports that this had financed the infamous Gupta family wedding at Sun City.
“I also enunciated that, as an institution, we need to have very good reasons why this avenue was not explored since we specifically make reference to the emails in the one-liner.”
Asked by evidence leader Nazreen Bawa what Mkhwebane’s response was, he replied: “I don’t recall receiving a response.”
He raised the same issue at a subsequent meeting of the task team on the investigation.
“The public protector then said that the emails were not part of the investigation.”
He said two colleagues had told him they had separately raised the same concerns with Mkhwebane and received the same response.
“I recall that, during a break in the meeting, Mr [Futana] Tebele and Mr [Ntsumbedzeni] Nemasisi indicated to me that they had raised the matter previously at task team meetings and the PP had said, ‘We are not looking into the Gupta emails.’”
In his affidavit to the parliamentary inquiry, Ndou mentioned a phone conversation with Mkhwebane about the investigation in which she said she believed investigator Erika Cilliers was doing the bidding of the Democratic Alliance and that she would personally be happy if no adverse findings were made.
He said he was “taken aback” by the remarks.
In the end, the report included no findings against high-level politicians. It was taken on review by the DA and the Council for the Advancement of the South African Constitution and set aside in 2019.
Judge Ronel Tolmay said Mkhwebane had “side-stepped all the crucial aspects regarding the complaints” and failed to carry out her constitutional duty. The ruling is one of several invalidating Mkwebane’s reports that underpin the misconduct charges before the parliamentary inquiry which could lead to her impeachment.
The National Prosecuting Authority said last month the Estina matter formed part of the basis for the state’s request that Rajesh and Atul Gupta be extradited from the United Arab Emirates.
The Zondo commission recommended that Magashule and Mosebenzi Zwane, a former minister and Free State MEC for agriculture, face criminal investigation because they aided the Guptas by failing to “perform their legal obligations” in respect of the dairy project.
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