A case in point is a leaked, taped, hour-long conversation between a delegation from the Public Protector’s office, led by Busisiwe Mkhwebane, and the current Inspector-General for Intelligence, Setlhomamaru Dintwe, and his legal adviser, Jay Govender, which took place in January 2019.

The discussion, during which Mkhwebane at some point gently threatens to invoke “higher powers” to charge Dintwe should his office not surrender a classified 2014 report by former inspector-general Faith Radebe, is a comedy of errors that would be thigh-slappingly hilarious, were it not so damaging to South Africa’s body politic.

From the discussion, it is clear the inspector-general and Govender at some point appear to be under the impression that the public protector is there to inquire about the State Security Agency’s completely rogue and completely criminal Special Operations Unit, run by Zuma’s personal spy, Thulani “Silence” Dlomo.

So much so that Govender later in the conversation volunteers startling information that the inspector-general’s office is investigating 186 Special Operations Unit “sleeper” agents who were off the State Security Agency’s books and who were still operational. Also that these agents were currently deployed and still active “across multi-agencies” including Transnet, SAPS and Prasa.

Over and above this, Mkhwebane was told that secret documents were removed from the State Security Agency offices at “the Farm” in Pretoria and had been shredded by Dlomo and former State Security Agency DG Arthur Fraser when they left the agency. Then there is the not-so-small matter of the listening device that went missing from the State Security Agency’s headquarters just before the ANC’s elective conference in December in 2017.

The High-Level Panel of Review into the State Security Agency concluded unambiguously in December 2018 that Dlomo had run a criminal, parallel intelligence structure “serving a faction of the ruling party and, in particular, the personal political interests of the sitting president of the party and the country”.

But the public protector had actually popped into the inspector-general in January in the course of her resuscitated investigation into Pravin Gordhan.

This after the EFF’s deputy president Floyd Shivambu, as well as another “anonymous” individual, had lodged a complaint with her office about a SARS investigative unit that was going after tax dodgers, from a former president to politicians in the governing party, from connected businessmen to tobacco barons, from cheap clothing importers to abalone smugglers.

It is clear from the conversation between Govender and Mkhwebane that the public protector is not even vaguely interested in the hair-raising disclosure about still-operative deep state agents who may or may not still be reporting to Dlomo, who has “gone missing” since his recall as ambassador to Japan, shortly after the release of the High-Level Panel Review.

Mkhwebane was after a classified 2014 report by former inspector-general Faith Radebe which she told Dintwe and Govender in their January discussion had been “just dropped off in our reception area”.

(What a coincidence – Daily Maverick also found the recording of the meeting between the public protector and the Office of the Inspector-General for Intelligence in our reception area! Must be something in the air… -Ed)

“I was surprised, whoever had it should not have it, it is classified. But unfortunately I have seen the report on Noseweek,” Mkhwebane tells the inspector-general.

She clearly liked what she saw. Radebe’s findings are that a “rogue unit” existed and that Gordhan should be hung, drawn and quartered.

Of course, Shivambu and EFF leader Julius Malema sought to make the report public by attaching it to another matter entirely: Pravin Gordhan’s two charges of hate speech against the Champagne Revolutionaries that he lodged with the Equality Court in November 2018.

We will not attempt to join any dots between the EFF lodging a complaint about Gordhan at the public protector’s office, its mysterious appearance in the public protector’s reception area and its later attachment by Shivambu and Malema to their responding affidavit in the hate speech matter. We can leave that to you.

The late Faith Radebe had been tasked in 2014 by Zuma ally, Minister of State Security, David Mahlobo, to investigate media reports that several State Security Operatives, including Belinda Walter and Mandisa Mokwena, were embedded in SARS and had launched an attack on the institution in an attempt to undermine it.

One of Radebe’s key witnesses back in 2014 was none other than Dlomo himself. Other witnesses on whom she relied to make her findings that a “rogue unit” existed and that Gordhan and others should be charged, was triple State Security Agency agent, attorney Belinda Walter, as well as several members of the multi-agency Tobacco Task team, who have since all been implicated in criminality, as well as former SARS employees who were also criminally charged, one for rhino poaching.

Like the Public Protector, the Office of the Inspector-General for Intelligence is a chapter nine institution with wide powers of oversight over the country’s intelligence agencies. It does not, however, have any mandate or oversight over SARS.

Which is why Radebe’s report and its findings have been so contentious. From being asked by Mahlobo to investigate the State Security Agency, she, in the end, focused on SARS and relied on the testimony of State Security Agency agents to make her findings.

It is clear from the public protector’s visit in January that she was determined at least to extract the findings and recommendations of the classified report for her investigation into Gordhan.

At the start of the meeting, Mkhwebane sets out some parameters, reminding all those present that “an organ of state or person must assist the public protector”.

“In this instance we have this complaint against Minster Gordhan relating to the operations of that SARS alleged rogue unit,” she says.

The public protector says that she “received information” that the report “made several recommendations”.

Dintwe and Govender explain to Mkhwebane that the Minister of State Security is the custodian of Radebe’s report and that it is her office only that is able to declassify it or make it public.

“Now the organ of state [she means the inspector-general] that is supposed to help me is saying I must write to the Minister? I would have expected that you would have requested that report, and that you would have done so on our behalf,” the public protector cooly tells the inspector-general.

Dintwe at first tries to steer the conversation elsewhere, politely informing the public protector about his frustration with funding for his office and that it has been requested to assist the Zondo Commission of Inquiry. This was because the former leadership of the SSA “could not trace documents at the agency” he tells Mkhwebane.

Dintwe adds there is “a lot of red tape” and a “legal quagmire” that prevents his office from handing over the 2014 report. It is the Minister or the DG only who can do this, Govender and Dintwe keep insisting.

Govender tries to explain to Mkhwebane that since the 2014 report was not an investigation into SARS “we have no mandate” but into the State Security Agency. Those interviewed had, Govender said, spoken about a SARS “rogue unit” that had been tied in with the Special Operations Unit.

“We found it necessary to interview persons within SARS to connect the dots. If we only did State Security Agency we would not have been able to do this,” says Govender.

She tells Mkhwebane that the 2014 report had been “qualified, we made it clear, we do not have a mandate over SARS. In order to investigate we had to deal with certain instances and happenings. We did not want to be accused of the report being ultra vires [acting or done beyond one’s legal power or authority].”

The Oversight Act, Govender added, made it very clear that the inspector-general had to hand the report to the minister of state security.

“The report is now in the custodianship of the minister,” said Govender adding that if the inspector-general wanted to make any disclosures this would have to be done in consultation with the minister and the president. Instructions could be attached to the report should it be made public, but this had to be in the interests of national security.

It is important at this juncture to bear in mind that the current minister of state security is taking the public protector to court for illegally being in possession of the Radebe report. Relations are, should we say, rather frosty on that front.

Mkhwebane replies to Govender and Dintwe in a languid, easy tone, telling them “one thing you need to know, your Zondo or whoever, they are not constitutional bodies. This is a constitutional institution, the constitution is supreme”.

She tells Govender and Dintwe that she expected them both to “request the report from the minister on our behalf”, adding “the institutions that are supposed to be helping us now, you say you are constrained by the provisions of the law”?

(Yeah, especially with the constitution being supreme… but we digress.)

Dintwe tries to push back, saying the inspector-general’s office is also a constitutional body.

“But then you have two acts of Parliament as well as the Oversight Act that establishes two bodies, with different levels of security against the other. We appreciate that you are saying it is not desirable that we should be looking at the route of a failure to comply with your subpoena.”

Mr Tact himself.

Mkhwebane and her team still don’t give in, telling Govender and Dintwe “instead of just responding and putting all this legislation, you should have indicated to me that yes, after consultation you have initiated while in the meantime advising that these are your intentions. That is the spirit I would want us to work on. Instead of placing limitations. I was not only referring to the [Public Protector] Act but criminal and constitutional provisions… that any person who must assist”.

The public protector suggests the inspector-general write to the minister and the president, adding “it says you must consult. It does not say they must approve.”

The inspector-general’s office, she suggests, should “test the waters about how responsive… and if there is no co-operation we will have to use our high powers on them and you”.

Govender tries to reason, saying that the office “did consult the day we received the subpoena. We tried to come up with common way. Yesterday we provided them with the reports. The DG had not received them. We made it easier for them, but we have not spoken since”.

It is then that Mkhwebane explains that she wanted to discuss information she had that the “rogue unit” was still operational.

“Are you doing anything?”

It is at this point Govender clearly mistakenly thinks the public protector is referring to the Special Operations Unit disclosure and the 180-odd rogue spooks who are accountable to no one, who are wanting their money and who are still working in the meantime.

She adds that the inspector-general’s office is revisiting the original report which further tangles up the lines of communication with the public protector.

“The one we are dealing with now, the Special Operations Unit. You must have been reading the papers. The operations of this rogue unit,” says Govender.

To which Mkhwebane replies “the rogue unit is alleged to be still operating and there is info which is there which proves that they are still operating. Those equipment, where are they? Were they removed? They are apparently still being utilised. Who should be lodging the complaint if the minister is not?” asks Mkhwebane.

Govender informs her that a member of the public could lodge a complaint, but reminds her “we don’t have a mandate over SARS”.

Mkhwebane: “It is still operating. Under the gaze, under the same…your report was not implemented.”

“If there is a link between them… if they are receiving assistance from the State Security Agency or CI,” explains Dintwe, adding “we do not have a complaint on our table saying it is an operation supported by this and that. If we do, we’re not able to investigate SARS.”

Which is when Govender chips in, saying:

“If the public protector has any other info which suggests they are still receiving support from the State Security Agency or Special Ops we will be able to look into it.”

Mkhwebane: “That intelligence activity is still happening. What we have to do is we have to get all the info and write a letter officially to the DG, investigate, because again, who was supposed to say those equipment? Nothing has been done. People are still continuing. No one bothered to make sure [that the recommendations of Radebe’s report were implemented]. The minister or the Joint Standing Committee was supposed to act.”

The Office of the Inspector-General as well as the DG of State Security, declined to comment on the revelations that more than 180 off-the-books spooks from the discredited Special Operations Unit were still operative while their former boss, Dlomo, had vanished into thin air. We did mention public interest.

“It is not the policy of this office to disclose details of complaints received until such time a preliminary investigation has been conducted,” Govender told Daily Maverick.

Meanwhile, Mava Scott, commenting on behalf of the minister of state security replied:

“The questions you have asked relate to sensitive operational matters which we are not at liberty to discuss in public, in terms of section 4(a) of the Intelligence Services Act, 65 of 2002.” DM