Floyd Shivambu - EFF Photo Delwyn Verasamy
Economic Freedom Fighters chief whip and deputy president Floyd Shivambu gave a copy of a classified report of the office of the inspector-general of intelligence (OIGI) on the South African Revenue Service (Sars) to the public protector, according to testimony to the parliamentary inquiry weighing misconduct charges against Busisiwe Mkhwebane on Thursday.
The report, signed off by then inspector-general of intelligence Faith Radebe in 2014, found that there was an unlawful, or “rogue”, intelligence-gathering unit operating in the Sars, a claim that was overturned some five years later.
Ponatshego Mogaladi, the former executive manager of investigations at the office of the public protector, told the parliamentary inquiry Shivambu sent her the top secret report through email and WhatsApp after a meeting on 8 December 2018.
She said Shivambu had requested the meeting to “present evidence” in the investigation into the Sars high-risk investigations unit, after his complaint had been acknowledged.
“There was a complaint that was lodged by the complainant. He indicated that he wanted to come and present the evidence to the investigation team. The discussion was around the allegations, because the complaint had several allegations. The complainant was Mr Floyd Shivambu.”
She said when she opened the document Shivambu subsequently sent her, she did not read beyond the second page because she saw it was classified and assumed that it emanated from the State Security Agency.
Mogaladi said she found the fact that she had been sent a classified document disturbing. “That is why I did not open or disseminate the document further.”
Shivambu alleged in his complaint that former finance minister Pravin Gordhan had “willingly established an intelligence unit against the intelligence laws of South Africa”.
He ostensibly based the claim on a 2014 investigative report compiled by a panel chaired by advocate Muzi Sikhakhane. A commission of inquiry headed by retired judge Robert Nugent four years later found that there was no evidence that the unit had operated unlawfully.
Despite this, Mkhwebane echoed Sikhakhane’s findings in her report, which was overturned by the high court in December 2020. The court found that she “allowed her important office to be used to try and resuscitate a long-dead fake news propaganda fiction”.
The court said Mkhwebane had failed to consult the parties implicated in the report before publishing it, and that this fell “far short of the high standards demanded of her office”. It also found that she had been dishonest about having a copy of the report office of the inspector-general of intelligence.
Mkhwebane wrote that she knew “on very good authority” what the office of the inspector-general of intelligence’s adverse findings regarding the unit were but did not disclose that she had seen these.
Yet she ordered that the state security minister should, within 90 days, implement the office of the inspector-general of intelligence report in full, and within 30 days ensure that all equipment used by the Sars unit be placed in custody of the State Security Agency within 30 days. She also directed the minister to deliver a declassified copy of the report to her office within 14 days.
The high court found it questionable that Mkhwebane could blindly rely on something she had not seen, or been able to verify. But, it noted in its judgment, this did not turn out to be the case because her counsel stated in their third set of heads of argument that she had “carefully studied the OIGI report”.
When they were confronted with the contradiction between this statement and their client’s version, they conceded that the classified report was in Mkhwebane’s possession.
“The public protector now claims that she subsequently received the OIGI report from an anonymous source who left it at her offices. This turn of events is disturbing to say the least and it is difficult to label the public protector’s conduct in this regard as anything else but dishonest,” the court said.
Under questioning, Mogaladi said she could not confirm that the document she was sent by Shivambu was the same one Mkhwebane had in her possession.
At the time Shivambu met her, possession of the report would have been unlawful in terms of section 4 of the Protection of State Information Act and section 26 of the Intelligence Services Act.
Mogaladi confirmed that in 2019, then minister of state security Ayanda Dlodlo sent a letter to the public protector expressing concern that it had been in possession of a secret document.
She added that at the time there had been debate in the institution as “to what extent can documents of that nature be forwarded to the public protector for purposes of investigation”.
When Mkhwebane sought leave to appeal the high court ruling, Dlodlo opposed this.
Her argument was that in doing so Mkhwebane was seeking to compel her to implement the office of the inspector-general of intelligence’s report, when it had by then been set aside. She added that she further opposed the appeal bid because the high court had been quite correct in holding that Mkhwebane “acted improperly in flagrant disobedience to the constitution and the law”.
Dlodlo gave a redacted copy of the report to all parties to the litigation. The supreme court of appeal dismissed Mkhwebane’s application.
Shivambu had, in July 2019, written to Dlodlo urging her to release the office of the inspector-general of intelligence’s report, saying the content was of public interest.
In his report on state capture, Chief Justice Raymond Zondo said the “rogue unit” narrative “is now acknowledged to be an entirely false and misleading story” that was used by former Sars commissioner Tom Moyane to decimate the enforcement capacity of the revenue service to the benefit of those involved in corruption and organised crime.