South Africa


Gordhan still under attack, while Mkhwebane claims she had security clearance authorising possession of classified report

Gordhan still under attack, while Mkhwebane claims she had security clearance authorising possession of classified report
Suspended Public Protector Busisiwe Mkhwebane during the inquiry into her fitness to hold office at Parliament on 2 November 2022 in Cape Town, South Africa. (Photo: Gallo Images / Brenton Geach)

Minister of Public Enterprises Pravin Gordhan remained a focus in suspended Public Protector Busisiwe Mkhwebane’s Section 194 impeachment inquiry, which resumed on Monday.

It was Gordhan, the committee was told by Public Protector of SA (PPSA) investigator Bianca Mvuyana — who headed the probe into an alleged “rogue” unit at the South African Revenue Service (SARS) — who had claimed “a conspiracy” by the Public Protector.

Also on Monday, Advocate Dali Mpofu, representing Mkhwebane, argued that his client had never stated that she had not had sight of the controversial and classified 2014 Office of the Inspector-General of Intelligence report by the late Faith Radebe into illegal State Security Agency (SSA) activities at SARS.

The Public Protector’s report had relied on the “Radebe Report”, which the EFF had also leaked publicly, attaching it to court documents in another matter.

Read more in Daily Maverick: “EFF’s Floyd Shivambu gave Mkhwebane classified SARS ‘rogue unit’ report, hearing told” 

In invalidating Mkhwebane’s report, several courts found she had been dishonest in stating in her affidavits that while she had not had sight of the classified report, she had “received information” that it had made adverse findings against Gordhan.

Mkhwebane, a former SSA official, through Mpofu, claimed before the committee on Monday that she had never stated this.

In fact, Mpofu explained, Mkhwebane had security clearance at the highest level and therefore was authorised to be in possession of the report.

None of this has yet explained Mkhwebane’s visit in January 2019 to the Office of the then Inspector-General of Intelligence (IGI), Setlhomamaru Dintwe, in an attempt to strong-arm him into declassifying the report or approaching and requesting the minister of state security to do so.

During the meeting with Dintwe, which was recorded and later leaked, Mkhwebane explained that the classified report had been dropped off anonymously at her offices.

Read more in Daily Maverick: Busisiwe Mkhwebane’s big fat fishing expedition for Radebe Report” 

At the 2019 meeting, long-serving IGI official Advocate Jay Govender can be heard attempting to explain to Mkhwebane that as the 2014 report was not an investigation into SARS “we have no mandate”. 

The SSA, Crime Intelligence (CI) and other intelligence structures were their business, she set out.

Those interviewed, Govender told Mkhwebane in the meeting, had spoken about a SARS “rogue unit” that had been tied to the Special Operations Unit (run by Zuma’s “spy” Thulani Dlomo).

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

In March 2019, two months later, Mkhwebane lodged criminal charges against then minister of state security, Dipuo Letsatsi-Duba for failing to declassify and hand over Radebe’s investigation.

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

An order setting aside the Radebe Report was later made in the high court in 2019 by mutual agreement between SARS official Johann Van Loggerenberg, Dintwe and Letsati-Dube’s successor, Ayanda Dlodlo.

In November 2019, four months after Mkhwebane released her SARS report, Van Loggerenberg approached the court after the PP had announced that she had been handed a redacted version of the classified document by Dlodlo.

Van Loggerenberg had lodged 34 complaints with Radebe in 2014 when she first embarked on the investigation. None of these had been considered, he said.

Read more in Daily Maverick: “Fatal blow to Mkhwebane and EFF as court sets aside intelligence report at core of investigation into SARS ‘rogue unit’” 

On Monday, Mvuyana, as chief investigator on the matter, said she had not had sight of the controversial report as she did not have the required clearance.

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

Conspiracies are us

Leading Mvuyana, Mpofu asked the investigator who she thought was the “original source” of allegations that a “conspiracy” existed.

“Mr Gordhan,” she replied.

The committee had already resolved not to call Gordhan, and Mpofu and Mvuyana’s exchange appeared to be a subtweet about their displeasure in this regard.

In relation to the complaint lodged with the PPSA by the EFF’s Floyd Shivambu, Mvuyana explained the politician had been a “willing” complainant who had wanted to provide information which made the investigators’ lives “easier”.

An anonymous complaint about the alleged illegal unit in SARS had been lodged in October 2018, a month before Shivambu’s approach to the PPSA.

Mvuyana told the inquiry that only she had been involved in the investigation and that her boss, Mkhwebane, had absolutely no hand in it (apart from signing it off, we take it).

Former minister of finance Trevor Manuel’s name popped up in Mvuyana’s evidence, with the investigator stating that Manuel’s request for the establishment of the unit and the procurement process way back when had been one of the arms of her investigation.

She added that the term “rogue unit” had emerged in the media in relation to a series of “investigations” published by the Sunday Times about the alleged illegal unit, which the publication later withdrew after apologising.

It was Mvuyana who had drafted the subpoenas for Gordhan, former deputy commissioner Ivan Pillay, former SARS commissioner Oupa Magashula and Van Loggerenberg during the investigation by the PP.

The not-so-illusive Van Loggerenberg

Mvuyana, in explaining why a subpoena had not been served on Van Loggerenberg, insisted that she had not known where to locate him and that the office had, in fact, called a “source” in SARS HR for an address, only to be told: “You won’t find him.” 

Van Loggerenberg has disputed this in his testimony to the inquiry, saying his lawyers had been in communication with Mkhwebane and the PPSA and that he at no stage had proved difficult to locate. This was borne out in evidence of communication between the parties.

In her later explanation with regard to Van Loggerenberg, Mvuyana revealed that she had not had sight of letters between the SARS official, his lawyers and the office of the PPSA.

She added Van Loggerenberg was not “a decision-maker” and so “would not have been impacted by the remedial action”.

Van Loggerenberg has testified that he spent “eight years of hell” seeking the right to reply to allegations in various reports such as the KPMG and the Sikhakhane reports, which have since been withdrawn and discounted.

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

Van Loggerenberg, she said, would be dealt with in the “second” part of the investigation, in which case she would have tried more vigorously to contact him, she admitted.

Plausible deniability 

The investigator denied that Mkhwebane had not taken account of the report of the Nugent Commission of Inquiry into Tax Administration and Governance at SARS, which had recommended criminal prosecutions, the setting aside of contracts and the recovery of wasteful expenditure by former commissioner Tom Moyane.

Mvuyana said she had only become aware of the controversial KPMG report through the media. And while it was later discredited, this did not stop it from “existing”, she added.

She said all previous reports on the alleged unit were considered, including those now discredited or set aside. Mvuyana said it would have been impossible for Mkhwebane to draw so many people into an alleged conspiracy, as Gordhan had claimed, as there was a hierarchy of command in the office.

Mpofu said Mkhwebane would have had to bribe or recruit people “like you” to be part of that conspiracy and that the investigator was “in the dock” as much as she [Mkhwebane] was”, which elicited a chuckle from Mvuyana.

Officials in the hierarchy, Mvuyana said, would have had to turn a blind eye to “glaring anomalies”, which would have been very difficult unless everyone was in on the plot.

What he found strange, however, said Mpofu, was the charge that the PP “relies on this report despite explicitly stating that she has not seen the report”. 

Turning to Mvuyana, he asked: “Did she ever, explicitly or otherwise, say she had not seen the report?’

“No,” the investigator stated categorically.

Mpofu said Mkhwebane had been accused “many times” of this “and not one is true”.

As to the accusation that Mkhwebane had been hellbent on “lynching” Gordhan and Pillay, Mvuyana said she had never experienced Mkhwebane’s behaviour as a “witch-hunt”.

Also, the suspended PP had never attempted to influence the SARS investigation or instructed anyone to disregard evidence.

“There was no political purpose, there was no political motive to discredit him [Gordhan],” Mvuyana said.

The inquiry continues on Tuesday. DM


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