ANALYSIS

Fatal blow to Mkhwebane and EFF as court sets aside intelligence report at core of investigation into SARS ‘rogue unit’

By Marianne Thamm 9 June 2020
Caption
Public Protector Busisiwe Mkhwebane. (Illustrative image: Tebogo Letsie / 2019 Media 24)

A document which Public Protector Busisiwe Mkhwebane had hoped to use as the bedrock of her report on Pravin Gordhan in the ongoing SARS ‘rogue unit’ saga has been reviewed and set aside, delivering a potentially fatal blow to her case.

The genesis of the “rogue unit” narrative can in part be traced back to a 2014 report by former inspector-general of intelligence, Faith Radebe, an investigation that has now been trashed and rendered useless.

On Monday 8 June, Judge Sulet Potterill in the North Gauteng High Court ruled that a 31 October 2014 document titled “Report on the investigation into Media Allegations against the Special Operations Unit and/or other Branches of the State Security Agency” be reviewed and set aside, including its findings and recommendations. 

Radebe’s report had alleged that a “covert”  intelligence unit in SARS had existed and had been unlawful.

Public Protector (PP) Busisiwe Mkhwebane’s first legal bid at getting her hands on the report was in March 2019 when she lodged criminal charges against the then-minister of state security, Dipuo Letsatsi-Duba, for failing to hand over the classified Radebe investigation. 

Letsatsi-Duba lodged a counter-charge against Mkhwebane, accusing her of unlawfully possessing a classified document. The NPA eventually declined to prosecute either of them.

Mkhwebane had sought to weaponise the Radebe investigation to bolster her July 2019 report in which she found that Pravin Gordhan had violated the Executive Members Ethics Act and was also guilty of maladministration for his alleged role in setting up an investigative unit while SARS commissioner.

That same month, the North Gauteng High Court granted Gordhan an interim interdict to suspend the implementation of the PP’s remedial orders while he took the report on judicial review. 

In that matter, Potterill had found that Mkhwebane’s orders had been “vague, contradictory and/or nonsensical”.

On 29 May 2020, the Constitutional Court dismissed an application by the EFF and the public protector for leave to appeal the July 2019 interdict granted to Gordhan.

Potterill’s order on 8 June 2020 will most certainly negatively affect Mkhwebane and the EFF’s ongoing lawfare against Gordhan, if not entirely snuff it out.

The order on Monday was made by mutual agreement between former SARS executive Johann van Loggerenberg, current Inspector-General Setlhomamaru Dintwe and State Security Minister Ayanda Dlodlo.

In November 2019, four months after Mkhwebane released her “rogue unit” report, Van Loggerenberg approached the court after the PP had announced that she had been handed a redacted version of the classified Radebe document by Dlodlo who had replaced Letsatsi-Duba.

Van Loggerenberg had lodged 34 complaints with Radebe in 2014 when she had first embarked on the investigation. None of these had been considered, but Dintwe had since undertaken to revisit these. 

It is hoped that the investigation into Van Loggerenberg’s complaints will not be iced as a result of Monday’s ruling. 

Those included on Van Loggerenberg’s list were former Sunday Times journalists Piet Rampedi and Mzilikazi wa Afrika, as well as SSA operatives who were named as key instigators in the campaign to discredit SARS.

Also on the list is former SSA Special Operations Unit head and Zuma’s “personal spy” Thulani Dlomo; triple agent and SSA spy, the Pretoria lawyer Belinda Walter; SARS SSA spy Mandisa Mokwena as well as three members of the Tobacco Task Team: Chris Burger, Ferdi Fryer and Casper Jonker.

In a stroke of marvellous luck, Mkhwebane announced, shortly after the EFF had attached the classified Radebe report to court documents in an unrelated matter in the Equality Court in November 2018, that the full classified version had been “just dropped off in our reception area”.

This detail Mkhwebane confessed to Dintwe during a personal stop-off at his office in January 2019 (two months before she approached the courts) in what was clearly a desperate but ultimately unsuccessful bid to retrieve the document.

The PP’s visit to Dintwe was after the EFF’s Floyd Shivambu and Julius Malema had made the Radebe report public in court papers in an Equality Court matter involving Gordhan and regarding two charges of hate speech.

It was this making public by the EFF of the classified report that set in motion the wheels of justice that would finally see the same report now finally neutralised and confined to the rubbish heap of history.

The entire report, Van Loggerenberg was preparing to argue in court, had been based on the evidence from a gallery of discredited rogue state security agents infiltrated into SARS.

Mkhwebane’s January 2019 hour-long pop-in to see Dintwe was an attempt to coerce his office to surrender the classified report. Her conversation with the IGI was taped and later formed part of court papers in the Gordhan review application.

During the discussion, the PP threatened to evoke “higher powers” to charge Dintwe should his office not surrender the report. The IG’s office pushed back, asserting its independence as a Chapter 11 institution and maintaining that only Dlodlo had a mandate with regard to the Radebe report.

In September 2019, Dlodlo prepared to head to court to seek the removal of the Radebe report from EFF court papers and the public domain.

At the time, State Security spokesperson Mava Scott said the report had contained “secret information exposing the identities of members and former intelligence members and sources and methods of the agency, which is protected from publication by the law”.

The public protector’s office, through her spokesperson, Oupa Segalwe, said Mkhwebane would oppose Dlodlo’s application as the Rabebe report was “central to the case against Gordhan”.

The Office of the Inspector-General of Intelligence has wide powers of oversight over SA’s intelligence agencies but does not have any mandate or oversight over SARS. It was former Zuma ally, Minister of State Security David Mahlobo who first ordered the IG probe.

This came after media reports in 2014 that several State Security operatives had spied on SARS and had been tasked with undermining the institution. 

While Mahlobo had ostensibly requested Radebe’s office to investigate the conduct of the SSA agents, she inexplicably shifted focus on to SARS officials instead.

Radebe’s appointment had been a controversial one as she had been a former employee of the National Intelligence Agency and State Security Agency and viewed as “an insider who lacked the necessary independence and would find it hard to hold former comrades to account,” as Chris Barron noted in Radebe’s 2018 obituary.

Thulani Dlomo had been one of Radebe’s key witnesses as were Belinda Walter and several other members of the multi-agency Tobacco Task Team – who have all since been implicated in criminal activity – and a former SARS official arrested for rhino poaching.

Van Loggerenberg submitted an affidavit of more than 300 pages with attachments to Dintwe and filed by former SARS deputy commissioner Ivan Pillay, supported by Van Loggerenberg.

Pillay and Van Loggerenberg also supported Dlodlo’s interlocutory application to the Pretoria High Court when she sought to interdict the dissemination of the 2014 report.

These court papers revealed surprising nuggets, including that Walter, who had acted as an attorney for Malema’s benefactor, Adriano Mazzotti’s and Kyle Phillips’ tobacco company, Carnilinx, had in fact been party to registering the trademark of the EFF’s logo in 2014. Emails from Walter to this effect were attached to Van Loggerenberg’s affidavit.

Malema, in his answering affidavit to Dlodlo’s application, had described Walter, simply as “a member of the public and a lawyer for tobacco companies”.

However, said Van Loggerenberg, Malema had “not taken the court into his confidence and set out the facts known to him regarding Ms Walter. In fact, they go back a long way.”

“Mr Malema’s attorney, Mr Tumi Mokwena, informed me, when he sought to consult with me between March 2015 and May 2015, that he and his client had been consulting with Walter with respect to a dispute that Mr Malema had with SARS. I reported this to SARS and the SSA at the time,” Van Loggerenberg revealed.

He added, “it is public knowledge that Carnilinx Tobacco Company is a benefactor of both Mr Malema and the EFF. Mr Malema is friendly with Mr Mazzotti and he has received a R1-million loan from another of its directors, Mr Kyle Phillips.”

It was also widely known, said Van Loggerenberg, that Walter was the attorney for Carnilinx “while spying on Carnilinx, its directors and their private lives for a multi-agency Tobacco Task Team [which consisted of Jonker, Burger, Schlenther, Niemann and former SARS operative Mike Peega] along with British American Tobacco and an entire spy network” operated by its private security division, Forensic Security Services.

“It is inconceivable that Mr Malema has forgotten that it is, in fact, Ms Walter who unlawfully and illegally spied on his benefactors and that this led to a major fallout between me and this multi-agency Tobacco Task Team and Ms Walter.”

Van Loggerenberg also revealed that Malema, through Mokwena, sought to engage his (Van Loggerenberg’s) services after he resigned from SARS in 2014.

The former SARS executive said that Mokwena, Malema’s attorney, had contacted him in March 2015 concerning Malema’s ongoing dispute with SARS.

Mokwena and Van Loggerenberg had met three times at Mokwena’s insistence, but Malema’s attorney had not been willing to, “accept my normal business practice of providing invoices for services rendered”. Van Loggerenberg had formally reported Mokwena’s approach to him to SARS and the SSA.

The judgment on Monday by Potterill should put a final nail in the destructive and long-running hounding of Gordhan and many others in the shameful “rogue unit” saga. DM

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