In November 2018, Public Protector Busisiwe Mkhwebane was preparing two reports: one on the so-called SARS rogue unit and another on former deputy commissioner Ivan Pillay’s early pension payout.

While the courts set aside both of Mkhwebane’s reports, Parliament’s Section 194 impeachment inquiry has heard that her office spent R15-million relentlessly and unprocedurally pursuing the Gordhan matter.

Testifying on Thursday at the inquiry into Mkhwebane’s fitness to hold office, Rodney Mataboge, chief investigator with the Public Protector South Africa (PPSA), gave evidence directly related to charges that the suspended PP had not disclosed evidence, a Rule 53 requirement to produce records.

It is this action as well as other alleged acts of misconduct that have landed Mkhwebane before the inquiry.

Mkhwebane wrote to Mataboge in November 2018 about Gordhan that, “If such a state of affairs is left unattended South Africa is bound to turn into a mafioza [sic] state where corporations collude with politicians to undermine the rule of law to maximise profits.”

She claimed Gordhan was “a threat to democracy” who had to be “stopped before he causes more harm in the guise of cleaning”.

Later during Thursday’s proceedings, Mataboge, after questions from evidence leader advocate Nazreen Bawa, made a bombshell admission that he had, in truth, seen the Inspector-General of Intelligence’s classified “Radebe Report”.

The admission only came after an email from Mkhwebane to the investigator referring directly to this was shown to the committee.

Mkhwebane has always maintained she never possessed the report and that a copy had been dropped off anonymously at her offices. Without a legal copy, her investigation was always dead in the water, but she forged on.

Refreshing Mataboge’s memory, Bawa pointed out that in an email to Mkhwebane, the investigator confirmed he had seen the report and had, in fact, “put it in the safe”.

Mataboge claimed not to have remembered which report he had been referring to as it did not come immediately to his “visual memory”.

Now that the email had been flighted, he told the committee, he had to admit that he had actually looked at the report.

Reluctant witness

Mataboge is a reluctant witness, and a week has been lost to-ing and fro-ing about a subpoena to summon him after PPSA investigator Bianca Mvuyana, who worked under Mataboge, refused to provide an affidavit to Mkhwebane’s legal team if her boss did not testify.

Mataboge worked closely with Mkhwebane on two Vrede Dairy reports, including the first sanitised version which had removed the names of Free State politicians and officials.

He also worked on Mkhwebane’s investigation into the “CR17” campaign donation complaint as well as the two investigations into Gordhan and Pillay.

Earlier this week, Matoboge informed the committee that he had received a threat via SMS from a “Mr Mojake” who had written “Karma is a bitch” and accused Mataboge of concealing evidence.

After discussions with the committee behind closed doors, Mataboge agreed to give evidence on Thursday.

He is the last witness to testify before former Public Protector Thuli Madonsela is scheduled to appear on 1 March. She will be followed by Mkhwebane. Ten days have been set aside for her testimony.

Mvuyana has indicated she will provide a written statement to the inquiry.

Vital evidence

Mataboge’s testimony is vital as it speaks directly to the charges Mkhwebane faces in this impeachment inquiry and whether she colluded and concealed the record of her investigations from the courts and those she sought to implicate.

In another email presented at the inquiry, Mkhwebane made it clear to Mataboge what it was she sought in the Gordhan matter.

“Pravin must face his day in court,” she wrote, “if SAPS and the Scorpions office were not bugged how did Gerrie Nel get info on Selebi?”

The witness said he did not have any subsequent meeting with an unnamed complainant who had lodged the case against Gordhan and a SARS official and who had signed off his email to the PPSA as “Scared Whistleblower”.

“No one could find him afterwards,” Mataboge said.

Further emails were flighted in which Mkhwebane instructed her COO, Basani Baloyi, to find evidence and proof of payment of “rogue unit” activities. “I saw it in 2012 and there is all the evidence of payments, recruitments and contracts,” wrote Mkhwebane.

She noted to Mataboge that she had perused the 2012 “original complaint” and that all the evidence against the SARS officials existed.

Visit Daily Maverick’s home page for more news, analysis and investigations

Baloyi’s public criticisms of Mkhwebane, who worked for the PPSA for about eight months before her employment was terminated in 2019, included the Public Protector’s handling of the SARS investigation and the CR17 Bosasa donation.

Testifying before the inquiry in August 2022, the PPSA COO revealed that Mkhwebane had sent her a WhatsApp during the investigation into President Cyril Ramaphosa.

Read more in Daily Maverick: “Mkhwebane viewed politically sensitive Ramaphosa investigation as ‘a chess game’ – former COO Baloyi”

On 26 May 2019, Mkhwebane texted: “Coo. I worked with a few people to deal with the sabotage of the PG [Pravin Gordhan] camp, the notice almost ready for rogue, will issue this week and report will also be issued in the manner I will determine.

“The notice for the President is also ready, will call him this week to discuss the notice. It is not about you but one has to play the chess [sic].”

Baloyi told the committee that her impression after receiving the message had been that “a political game was being played”.

A day after Mkhwebane’s message to Baloyi about the Gordhan “sabotage”, she sent a further communication stating: “We meeting CR [Cyril Ramaphosa] on 30 May at 3pm at mahlamba. You part of the team, will give you hard copy to read and shred after.”

She had been shocked at this, as “to be told to shred it was the worst thing. In that office, we never shredded most of the reports. For it to be shred was an anomaly,” said Baloyi.

We can see clearly now

In evidence to the inquiry in July 2022, ex-SARS official Johann van Loggerenberg set out his eight years of trauma following the Public Protector’s release of her reports, which were later set aside by the courts.

Read more in Daily Maverick: “Eight years of whistle-blower trauma – former SARS executive Johann van Loggerenberg”

He told the commission that Mkhwebane had failed to contact him to obtain his side of the story.

“I wasn’t heard once in this whole saga. I was disregarded as if I did not exist and was irrelevant.”

Van Loggerenberg had in 2016 approached the Public Protector as a whistle-blower, submitting “reams of documents” and had shared cellphone and private email details.

His lawyers had continued to correspond with Mkhwebane up until three weeks before the report’s publication, as she had referred to the SARS high-risk investigations unit as a “rogue unit” on various public platforms.

Yet the July 2019 report indicated Van Loggerenberg could not be issued with a subpoena because he was “unable to be found”.

“My residential details have remained the same since 2010 and were easily accessible… I can’t imagine Ms Mkhwebane not being able to find me… My attorneys corresponded, her attorneys responded… That was before the report was concluded,” Van Loggerenberg told the inquiry.

Van Loggerenberg headed the High-Risk Investigations Unit at SARS from February 2007. The unit had at most 20 members at its height before being left with six staff when it was disbanded in late 2014 by then SARS commissioner Tom Moyane.

Mataboge claimed the PPSA had been unable to locate Van Loggerenberg and that he had informed Mkhwebane, who had responded that the former SARS official would have to “appear in court”.

Investigators did nothing further to try to find Van Loggerenberg, the committee heard, even though his attorneys had communicated with the PPSA.

When Bawa presented an email sent from Van Loggerenberg’s attorneys to Mataboge himself three weeks before Mkhwebane’s report was released, he replied, “Yes, I see it now.”

A rock and a hard place

Asked on Thursday by Bawa whether investigators had “selectively” looked at evidence in their investigations, Mataboge fudged the question, responding he had only worked on the “narrative” and had not seen the actual evidence.

Asked whether it had been “expediency” that had informed the unlawfulness of the action (of not obtaining responding affidavits) — as in the Vrede Dairy matter, where the politicians and officials were given an opportunity to respond, while Gordhan and SARS officials were not — he replied “no”.

Mataboge’s defence was that the PP was in a hurry to get both the reports completed and had pushed her team. Yes, while he had been involved in the investigation, it was Mkhwebane who signed it off.

“I have the memos of all the communication, but not here with me, at my office. I can submit them,” he assured the committee.

The collateral damage of his job was that he was caught between a rock and a hard place, Mkhwebane and the CEO, he complained. He told the committee he had received instructions on the CR17 matter from Mkhwebane but that former PP CEO Vussy Mahlangu had other instructions.

“The CEO would want me to do something and the PP would want me to do something else,” said Mataboge.

In the end, Mkhwebane told other officials to let Mataboge get on with his work.

Who is the mysterious SC?

In a communication to Mataboge after he had delivered his draft of the CR17 report, Mkhwebane noted that she would be running it past “SC”.

The investigator said he had no inkling who “SC” might have been.

“It was Seanego [Mkhwebane’s private legal firm],” Bawa enlightened Mataboge, adding: “you know he is an attorney” (and not an advocate).

He was asked later whether Paul Ngobeni, a fugitive from the US justice system, wrote an opinion, to which he replied: “I don’t know who he is, clearly.” Ngobeni, who is not registered as a lawyer in SA, consulted extensively for the PP.

Ngobeni was also part of a media propaganda campaign and published several articles criticising the judiciary and Cabinet ministers.

Read more in Daily Maverick: “Fugitive lawyer scored R30,000 from Mkhwebane’s office to pen two articles critical of Cabinet ministers”

Mataboge admitted he had been the author in January 2019 of a communication from the PPSA to the Inspector-General of Intelligence about the “Radebe” report, but did not know whether Mkhwebane was in possession of the report at the time.

The inquiry continues on Friday. DM