Ace Magashule. Photo by Mlungisi Louw/Gallo Images/Volksblad
Former public protector Thuli Madonsela on Tuesday said former Free State premier Ace Magashule’s name cropped up from the earliest stages of her office’s investigation into the Vrede dairy farm scandal.
Masondela said it was her firm view that the public protector could not ignore information in the public domain pointing to the involvement of politicians in corruption, of which there was plenty in the case.
She was questioned on the subject by GOOD Party MP Brett Heron during a fractious second day of testimony to the section 194 inquiry where Madonsela’s successor, Busisiwe Mkhwebane, is defending charges of impeachable misconduct.
On Monday, Madonsela disclosed that she had tea with Magashule but said it was incorrect, if this was Herron’s understanding, that this encounter persuaded her that the investigation should look into the role of politicians in the Free State farming community upliftment project that turned into a R280 million fraud and corruption scandal.
“That was not the basis for saying politicians should be investigated,” she said, before referring to early draft reports by the initial investigator in the matter, Erika Cilliers.
Madonsela said that in one of the early versions of advocate Cilliers’ report, there had been an indication that one of the officials had asked whether the premier was behind the process.
Madonsela then noted that she had asked the office of the public protector for the record of minutes of meetings of a think tank on the Vrede investigation.
She was told that she had to make a formal request through the evidence leaders of the section 194 inquiry and was now doing so, requesting not only the minutes but copies of reports from investigators to the think tank.
“It is not that politicians enter the stage very late after me meeting premier Magashule. Probably the very first draft that served before the think tank had mentioned the involvement of premier Magashule.”
She also denied that Magashule had implicated then Free State member of the executive council (MEC) for agriculture Mosebenzi Zwane.
“He did not say MEC Zwane is implicated. He said MEC Zwane was at the centre of this … he said he was the person behind the project,” Madonsela said.
Herron said the committee had heard that Cilliers prepared several draft reports “where she continuously kept the scope focused on the administration rather than the politicians”.
“So if she was following the evidence that she had, how did your intervention assist us to determine whether the final draft of this report was an act of misconduct when the initial investigator, advocate Cilliers, continuously drafted a report that did not include the politicians?”
He said, understood from the evidence thus far, that it was at Madonsela’s insistence that the investigation was widened to consider the role politicians played in the corruption of the project.
She corrected him.
“Firstly, it is not true that the first time politicians were mentioned was at my insistence. As I have indicated, premier Magashule was mentioned in the very first draft that served at the think tank.
“Secondly, the version that was now at the level of what she was presenting as a provisional report was not sent back because politicians were not mentioned. It was sent back because nobody was mentioned.
“It had no names. The actors who did the wrong things did not have names or faces.”
The exchange was significant because the charges against Mkhwebane are underpinned by a string of scathing court rulings in which her reports were set aside, including that on the Vrede project.
The final 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.
In her ruling, Judge Ronel Tolmay said Mkhwebane had “side-stepped all the crucial aspects regarding the complaints” and failed to carry out her constitutional duty.
The Zondo commission has since — in the fifth volume of its report on state capture — found that Magashule and Zwane were “pursuing the agenda of the Guptas” by failing to do their jobs with respect to the project.
The report recommended that law enforcement agencies investigate the pair in relation to the project, and the National Prosecuting Authority is hoping to charge Atul and Rajesh Gupta for allegedly diverting the funds for their own ends.
Last year, Reginald Ndou, former executive manager for the Free State investigation unit in the office of the public protector, testified that he had cautioned Mkhwebane that not including information relating to the dairy farm in the Gupta Leaks email cache would render her report on the investigation vulnerable to review.
Ndou said he raised the issue via email to Mkhwebane and senior colleagues in September 2017, along with his concerns that Magashule was distancing himself from what had transpired in Vrede and submitting evasive answers to questions on the subject.
“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.”
The draft report on Vrede referred to the Gupta Leaks in a single line, and only to say that it was not relevant to the investigation.
“In my view, 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 that matter, 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.
It was reported in June 2017 that R84 million had landed in the Guptas’ Standard Chartered bank account in Dubai. Ndou said he noted in media reports that this money 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.”
On Tuesday, Madonsela referred to the M&G case, recalling that Mushwana was faulted for ignoring a story broken by the publication, and said it would have been errant to do the same on the Vrede investigation.
“So the standard operating protocol, which was operational at that time, was that any source of information must be followed. And in the public domain, politicians were already implicated.”
“We were not going to ignore what was in the public domain,” she said. “You have to have an inquisitorial mind and you have to have some healthy scepticism.”
Heron asked whether it was correct that she removed Cilliers from the case because of her failure to focus on politicians and assigned it to another investigator.
“It was not removed from her because of excluding political players. It was removed from her for not having done a forensic investigation.”
It was imperative to conduct a forensic investigation, she added, when there is “a suspicion of corrupt relationships”.
“And that had not been done.”
Advocate Dali Mpofu, who is representing Mkhwebane, asked Madonsela if it was correct that she did not release a final report on the Vrede investigation. She said this was correct. Nor did she release a preliminary report before Mkhwebane inherited the probe.
On Monday, Mpofu repeatedly tried to impugn Madonsela’s credibility. At one point he referred to insults to her appearance. She said doing so was “shocking”, and again accused him of sinking below already questionable standards.
Madonsela’s comebacks at Mpofu in the course of her two days on the stand have included saying that he was obviously “paid for every word” he spoke — a suggestion that he was wasting taxpayers’ money.
The office of the public protector last week informed Mkhwebane that it would not be able to fund her legal representation before the inquiry beyond the end of March, which marks the end of the financial year.
Acting public protector Gcaleka Kholeka said in a letter to Mkhwebane that the actual cost already came to more than double the estimate of R4.5 million and that this was placing strain on the budget and operations of the chapter nine institution.
“The PPSA has already been billed and paid an amount in excess of R10 million which is more than double the amount that it had originally committed, without the fee agreement being revised as per the undertaking between the parties,” Gcaleka wrote.
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