The startling admission now opens Mkhwebane to accusations that she has lied to the court and perjured herself when she stated in 2019, under oath in an interlocutory matter, that she did not have Radebe’s report.
The Public Protector has consistently asserted in other court matters too that she did not have the report.
Mkhwebane also failed to mention she was in possession of the document in her 2019 report into SARS which made adverse findings against Gordhan, former SARS deputy commissioner Ivan Pillay and former SARS commissioner Oupa Magashula.
The Radebe report was made public by the EFF in 2019 in another matter and then later mysteriously found its way to Mkhwebane’s offices. The EFF have joined the public protector in opposing Gordhan’s bid to have her report set aside.
As part of her remedial action Mkhwebane ordered President Cyril Ramaphosa, the Speaker of the National Assembly, the Minister of State Security, the National Director of Public Prosecutions, the Commissioner of the South African Police Services and the Inspector-General of Intelligence (IGI) to take disciplinary steps against Gordhan.
On Thursday 6 August 2020, Advocate Kgomotso Moroka, acting for Minister of State Security, Ayanda Dlodlo, told the court that Dlodlo had agreed to the setting aside of the Radebe report as it had contained “indefensible deficiencies” and had been unlawfully originated.
“The public protector concedes that at the time of compiling the public protector report she had not been furnished with the OIGI report but nonetheless had it ‘on good authority’ what those findings were,” Moroka told the virtual hearing.
Mkhwebane had ordered the Minister of State Security to implement, in their totality, the findings of this classified OIGI report.
On Friday while Masuku was telling Judges Selby Baqwa, Leonie Windell and Annali Basson that the PP, in fact, did possess and read the report, over on Twitter her office appeared to be contradicting her It posted:
“The PP concluded her investigation without an authenticated, declassified copy of the OIGI report but had it on good authority that the report recommended criminal charges against the Minister of Public Enterprises and others.”
It was on this “good authority”, Mkhwebane had said, that she had ordered the Minister of State Security at the time, Dipuo Letsatsi-Duba, and the current Minister, Ayanda Dlodlo, to implement the findings of the IGI report.
Masuku told the court that Mkhwebane was also “not bound” by a 8 June 2020 order by Judge Sulet Potterill in the North Gauteng High Court setting aside the Radebe report.
He said Dlodlo had been aware in that application that the Public Protector had “placed some reliance on the OIGI report” and as such should not have consented to the order by Poterrill without informing the Public Protector.
“Are you saying you are not bound by that order,” asked Baqwa on Friday.
“We are saying we are not bound by that order,” replied Masuku.
“Even though it is an order of this court?”
“It is an order by a single judge, it does not bind her. I stand by the arguments I make. This court sitting as a full court is not bound by the finding of a single judge It is not binding.”
Baqwa reminded Masuku that Potterill’s ruling now confined the Radebe report to the legal scrap heap.
“It does not exist in law,” said the Judge, adding, “the custodian [Dlodlo] says it is worth zero, zilch. You keep telling us to ignore this but there could be no better person to testify to that report than its custodian.”
To which Masuku responded that the “status” of Potterill’s order was in dispute as it had not been made on a “legal basis”.
Judge Windell asked Masuku to clarify whether at the time of writing her report on Gordhan Mkhwebane had relied on the “factual findings” of the Radebe report or whether she had simply had it on “good authority” as she herself had set out in her heads of argument.
At first it appeared Masuku was attempting to evade the question, replying that the PP “had conducted her own investigation of the issues that related to the unit and its activities. If you go through the report she made her own independent conclusions.”
Later he admitted “we have it now. It says what it says. She had a conversation with the IG (Setlhomamaru Dintwe) in which the report was disclosed.”
Masuku’s statement seems to suggest that Dintwe had “disclosed” the report to Mkhwebane.
However, in October 2019 Daily Maverick reported how Mkhwebane had visited Dintwe’s offices in January that year in an attempt to persuade him to hand over the Radebe report, a meeting that was captured on tape and later leaked.
In that meeting, Dintwe had informed Mkhwebane and her team that he did not have the authority to hand over the Radebe report and that only the Minister of State Security could do so.
Mkhwebane had threatened at the time to invoke “higher powers” but left the meeting with Dintwe in January 2019 left empty-handed.
Masuku said that the PP had been “entitled” to assistance to have the report declassified “so that she could lawfully put out her report.”
“We know there are statements about her right to hold a classified report. When she said the IGI report must be implemented she had the report,” Masuku finally admitted to the court opening his client to possible future accusations of perjury.
In January 2020, the Public Protector expressed her views about perjury in relation to an investigation into her by the DPCI.
At the time she said, “I refer a lot of serious matters of criminal nature to the Hawks. Such matters hardly ever receive attention, and yet there seems to be a prioritisation of trivial matters such as the one in question, which can under no circumstances be referred to as a ‘priority crime’.”
The DPCI, in turn, set out in no uncertain terms how it understood its mandate and that the public protector had not indicated which law informed her “interpretation” of what would be labelled a “priority crime.”
The act, said the Hawks, did not “use such terminology”.
The crime of perjury lies at the heart of legal ethics.
On Friday, in his heads of argument, Masuku set out that Dlodlo had been “incorrect” in suggesting that the PP had “placed heavy reliance” on the OIGI report for her “findings of fact and in law in her report.”
Mkhwebane had “carefully studied the OIGI Report” but had “conducted her own independent investigation on the issues covered in that report, she concluded that the findings and recommendations in the OIGI Report be implemented.”
When she had issued the remedial action on the OIGI Report, said Masuku, “she was satisfied that the OIGI had acted within its powers in conducting the investigation and was correct in its factual and legal conclusions.”
Baqwa also asked Masuku whether Mkhwebane and her office felt that the full recommendations of the OIGI report should stand “despite the fact that she did not even have that report”.
In her submissions, the PP had said that she had “on good authority became aware of the IGI Report which was left at her offices by unknown persons. When the report came to her attention, she took steps to ensure that she could lawfully utilise it for her investigation,” Masuku answered rather obliquely.
The PP charged that Dlodlo had said the remedial action could not be implemented by relying on Potterill’s order setting aside the Radebe Report.
“She relies on the order in which she consented to the setting aside of the IGI Report. This is what the Constitutional Court has warned against – sabotaging the remedial action of the Public Protector,” said Masuku.
He added that in an attempt to keep the Radebe report alive Mkhwebane was, “taking steps to reverse the order reviewing and setting aside the IGI Report on grounds that will be set out in that application. For the current purposes, the Honourable Court is not bound by the order setting aside the IGI Report.”
The hearing continues. DM