Truth, lies and vengeance in the Public Protector’s office

NEWS ANALYSIS

On Thursday afternoon, the Mail & Guardian asked the public protector’s office to respond to grave allegations by its former chief of operations in court papers — that Busisiwe Mkhwebane had lied and had acted unconstitutionally and for her “own ends”.

The public protector’s office dismissed Basani Baloyi’s allegations as untrue and as “vindictive vengeance”. Spokesperson Oupa Segalwe said Baloyi’s claims “seek to feed into the meritless claims and perception[s] that are out there”.

His answer crystalises with precision why Baloyi’s claims are so significant. Since Mkhwebane’s appointment as public protector, there have been questions swirling about her motives. Baloyi’s claims not only “seek” to feed into perceptions. They do feed into them. And whether the claims are meritless remains to be seen.

Baloyi filed court papers on Thursday, accusing the public protector of lying, of acting unconstitutionally and for her “own ends”. She referred in her affidavit to two of the most politically contentious reports — with findings against President Cyril Ramaphosa and Public Enterprises Minister Pravin Gordhan — saying the investigations were “extremely unusual”.

READ MORE: Public Protector ‘played chess with the country’

Questions about Busisiwe Mkhwebane began from the moment of her appointment. But it was really with the Absa-Bankorp report — her report into 1980s bailout by the Reserve Bank of Bankorp, which was acquired by Absa in 1992 — that further cast doubt on Mkhwebane.

When the Reserve Bank and Absa challenged the report in court, it emerged during the litigation that Mkhwebane had consulted with the State Security Agency and the presidency and did not reveal the meetings with the presidency in her final report.

The Constitutional Court took a dim view of her explanations, saying they made “no sense” and were “contradictory” and only “compounded the case against her”. The highest court ultimately ordered personal and punitive costs against her. Before that was the high court judgment on her Estina report, which found that the way she narrowed the scope of her investigation lacked “any logical or legitimate explanation”.

But it was Gordhan who first threw down the political gauntlet, saying in no uncertain terms in court papers that her report into the early pension payout of former acting Sars commissioner Ivan Pillay was “politically motivated”.

The President, at first cautious and respectful, has now also questioned her motives, accusing Mkhwebane of an ulterior motive in her investigation into the donation by the late Gavin Watson of Bosasa to Ramaphosa’s CR17 campaign for the ANC presidency.

These two court cases have raised even more serious and alarming questions about the public protector — yet to be answered.

Questions include where she obtained the emails (now attached to the still sealed court record in the CR17 Bosasa litigation) that indicate Ramaphosa may have known much more about the donors to his campaign than he is letting on. But there are more questions.

We want to know why she put Financial Intelligence Centre (FIC) documents — not supposed to be used as evidence — before the high court, when she could easily have verified the information the FIC provided her through her own subpoena powers. Was she in a rush? Why?

We want to know why she raised in her Bosasa report a suspicion of money laundering when the FIC’s staff told her investigators that, on the information the Centre had, there was no indication of money laundering. And then, strangely, in her report, she refers to the Prevention and Combating of Corrupt Activities Act (Precca) instead of the Prevention of Organised Crime Act (Poca), which is the legislation that defines money laundering. What was that all about?

We are curious as to the source — she said it was anonymously sent to her — of the Inspector General of Intelligence report, a redacted version of which has now been declassified. The report supports Mkhwebane’s finding that there was an unlawfully formed investigative unit within South African Revenue Service (Sars) that unlawfully spied on people. But how that report found its way into the hands of the public protector long before it was declassified — and even more strangely into the hands of the Economic Freedom Fighters’ Floyd Shivambu — remains a mystery.

Transparency is supposed to be one of the hallmarks of the work of the public protector —unless she is acting in good faith under the Protected Disclosures Act to protect whistleblowers.

Why did the public protector seemingly discount so much evidence in her “rogue unit” investigation, as alleged by Pillay? Why is this apparent discounting of relevant evidence such a constant refrain in so many of the court cases challenging her reports — most recently raised by #UniteBehind in its challenge to the public protector’s recent Passenger Rail Agency of South Africa  report?

It is important to remember that these questions may yet be properly answered when the public protector files her answering affidavit in the CR17/Bosasa case — expected later this week — and to Part B of the “rogue unit” case.

But Baloyi’s allegations shore up the view that the protector’s motives are suspect. That’s because now, someone privy to the innermost workings of the office at the high level of COO is saying yes, the “rogue unit” and Bosasa investigations were “extremely unusual”.

Baloyi said external investigators were unnecessarily brought in for the Bosasa investigation and staff at the PP’s office sidelined. These two highly politically sensitive investigations were prioritised over other investigations. The CEO, not supposed to be involved in investigations, was involved. When the PP’s office earlier told the M&G that he wasn’t this was “a lie”, she said.

There is also the somewhat cryptic sms attached to Baloyi’s court papers ““COO, I worked with few people to deal with the sabotage of the PG [Pravin Gordhan] camp. The notice is almost ready for rogue [unit], will issue this week and report will also be issued in the manner I will determine. The notice for the president is also ready, will call him this week to discuss the notice. It is not about you but one has to play the chess.” A screenshot of the WhatsApp message is attached to the court papers.

Baloyi took the message to mean she was playing political games. Not at all, said the public protector — she was being strategic in the face of a media onslaught: “The text in question was sent at the time when the subject of the investigation was dealing with the public Protector through the media. The public protector’s text was therefore referring to countering that.”

When approached for comment, the public protector commendably answered Baloyi’s allegations in record time. She said the number of people working on the Bosasa matter was reduced “due to the sensitivities involved”.

“The matter involved the Head of State and the information gathered including bank statements had to be handled with care. In fact, Ms. Baloyi was on a number of times found to have revealed sensitive details of investigations during social gatherings, breaching confidentiality agreements, and was cautioned about that.”

There is no truth in the claim of “rushed” investigations, she said. The Executive Members’ Ethics Act required that the investigations be expedited. It puts a timeframe of 30 days. “The public protector hardly ever meets this deadline because of the complexity of the matters and due to lack of resources but she does work hard to finalise them sooner – in compliance with that law,” her office said on Thursday.

They take as long as they take, she said. In order to really counter that, one would have to show that other investigations could in fact have taken less time, but were put on the back-burner in order to focus on the Bosasa and Rogue Unit ones. Baloyi does suggest this in her affidavit — when she says some investigations were prioritised — but does not give an example of one that could have gone quicker and against which her claim can be tested.

The fact that Baloyi has fallen out with Mkhwebane and left on bad terms also cannot be discounted. Mkhwebane calls Baloyi’s court case “vindictive vengeance”, and it may well be so.

It may also well be that her claims are both vindictive and true.

We would do well to wait for all the court papers — especially the answering papers in the Bosasa and rogue unit cases —before finally taking a view.