/ 2 September 2022

Suspended public protector Busisiwe Mkhwebane spare with truth, records

Mkhwebaneed 398074
Former public protector Busisiwe Mkhwebane. (Leila Dougan/Daily Maverick/Gallo Images)

Suspended public protector Busisiwe Mkhwebane has said almost nothing so far in the public hearings of the parliamentary committee that may recommend her impeachment. 

MPs have not heard what motivated her to rely on the input of intelligence officials to recommend reviewing the mandate of the South African Reserve Bank or to prefer, on the telling of colleagues, not to implicate politicians in the Vrede dairy farm scandal and to ignore the windfall that was the Gupta Leaks emails. 

Nor do they have her version of why she dissimulated in court proceedings that she had a copy of the classified report of the office of the inspector general of intelligence (OIGI) on the high-risk investigations unit set up within the South African Revenue Service (Sars)

in 2007.   

Mkhwebane was in caught in a lie on the latter when her legal counsel, in heads of argument filed to the high court, revealed that she “carefully studied the OIGI report” before reaching the same conclusion contained in it — that the unit qualified as “rogue” was established unlawfully and had conducted illegal intelligence gathering operations. 

That false narrative was kept alive in part by the Economic Freedom Fighters, whose deputy leader Floyd Shivambu not only filed the complaint that spurred Mkhwebane’s investigation but forwarded the then top secret report of late inspector general of intelligence, Faith Radebe, to her office.

This was revealed by Ponatshego Mogaladi, the executive manager of investigations at the office of the public protector. Shivambu sent the report to Mogaladi through email and WhatsApp after a meeting on 8 December 2018. He had requested the meeting to “present evidence” in the investigation into the Sars unit.

Mkhwebane accepted the contents as evidence and Pravin Gordhan, who was the Sars commissioner when the unit was set up and learned of her findings through the media, took her report on review. 

The court found that she “allowed her important office to be used to try and resuscitate a long-dead fake news propaganda fiction” and had flouted the standards demanded of her by failing to consult the parties implicated in her report before publishing it.

Mogaladi’s testimony underscores the court’s conclusion that Mkhwebane was not truthful when she claimed during the litigation that an anonymous source had left the report at her office. 

“The public protector now claims that she subsequently received the OIGI report from an anonymous source who left it at her office. 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 held.

The court ruling is among those that informed the advice of an independent panel to parliament that there was prima facie evidence of misconduct and incompetence on Mkhwebane’s part, and cause to appoint a section 194 committee to consider this further. 

Among them was her 2017 Absa-Bankorp report in which Mkhwebane “grossly overreached and exceeded the bounds of her powers in terms of the Constitution and the PPA (Public Protector Act) by unconstitutionally trenching on parliament’s exclusive authority when she directed parliament to initiate a process to amend the Constitution”, the panel said.

In July, the section 194 committee heard testimony from advocate Tebogo Kekana, a former senior investigator in the public protector’s office, that the recommendation was not in the preliminary report on the matter but materialised after two unusual meetings with members of the State Security Agency (SSA).

In attendance at the first was then director general of the SSA, Arthur Fraser. Kekana testified that Mkhwebane told him not to record the meeting or take notes. After the meeting, she instructed him to change the preliminary report to include a recommendation that the central bank be nationalised.

A second meeting followed where SSA official Maiendra Moodley submitted a single sheet of paper containing the recommendation that parliament do the necessary to amend the bank’s primary objective to that of promoting economic growth and ensuring the “economic well-being” of citizens. 

Kekana said he never understood why Mkhwebane insisted on writing this into the report, because he did not understand its relevance to the investigation into the R1.125-billion lifeline the Reserve Bank extended to Bankorp in the apartheid era.

He further testified that the instructions from the SSA were never disclosed in the course of the court review of the report as Mkhwebane did not want earlier drafts of the report in the rule 53 court record. When her lawyer objected to this approach, she briefed new counsel. 

In August, the committee heard from former chief operations officer Basani Baloyi that she was shocked when Mkhwebane ordered her to shred a hard copy of the preliminary findings on the CR17 campaign after putting these to President

Cyril Ramaphosa.

Mkhwebane is facing perjury charges brought by Accountability Now in 2019 on the basis of the constitutional court’s pronouncement that she put forth “a number of falsehoods” in the Absa-Bankorp review case. These included that she never disclosed the number of times she held meetings with then president Jacob Zuma or with members of the SSA in the course of her investigation, and failed to include

transcripts of those encounters in the court record.

Kekana was suspended by Mkhwebane in August 2019, after she confiscated his laptop. But before then he served as the lead investigator on the Vrede inquiry. Both he and his supervisor, Reginald Ndou, told the committee that Mkhwebane was deaf to pleas from senior staff to consider reports that instead of going to emerging farmers, the funding

for the Free State project had flowed to the Gupta family’s bank accounts in Dubai.

“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,” Ndou said.

But Mkhwebane held firm that “we are not looking into the Gupta emails”. In his affidavit to the parliamentary inquiry, Ndou mentioned a phone conversation with Mkhwebane where she said she would personally be happy if no adverse findings were made.

“I was taken aback,” he said.

The final report was successfully taken on review by the Democratic Alliance 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 final report spared Ace Magashule and Mosebenzi Zwane, respectively the premier and the MEC for agriculture in the Free State at the time. 

Sphelo Samuel, the former head of the public protector’s office in the province, testified in July that Mkhwebane wanted their names removed from the final report. Her lawyer, Dali Mpofu, charged that Samuel was lying about his communication with Mkhwebane and her presence at a site meeting on the farm in 2017.

In one of the more dramatic moments of the inquiry, evidence leaders produced a photograph of the visit showing Mkhwebane standing next to Samuel. Mpofu complained that the defence was “ambushed”. He later introduced an email from Mkhwebane to staff in which she referred to evidence that the money for the project was subverted, adding of the Guptas: “We now know they lied.”

Mpofu did not provide an explanation as to why this was absent from her report. In her own evidence so far, Mkhwebane repeatedly dealt with questions by saying she would provide answers in writing. For now, the committee is far from an explanation as to what motivated the conduct the courts have criticised and the findings they’ve overturned.

As Samuel’s testimony continued, he said she purged senior staff members in her office and replaced them with members of the SSA.

The committee has heard days of testimony to the effect that Mkhwebane drove investigators to work overtime to meet impossible deadlines and persecuted those who took family or sick leave. This testimony does not speak to the main charges of misconduct and incompetence but perhaps to parliament’s political will to remove Mkhwebane from office. 

The inquiry continues.