The investigation that led to the controversial and later invalidated SA Revenue Service (SARS) report by suspended Public Protector Busisiwe Mkhwebane took place outside of the office’s usual strict hierarchy of control, the Section 194 impeachment inquiry has heard.

On Monday, the inquiry learnt that former SARS commissioner and Cabinet minister Pravin Gordhan had been the focus of Mkhwebane’s probe as she had viewed him as “a threat to democracy”.

On Tuesday, committee members heard that the PPSA’s CEO, COO, legal department and a string of executive managers and quality controllers who usually worked on reports, were all left out of the loop.

In this instance it was lead investigator Bianca Mvuyana (limited by her lack of security clearance), her boss Rodney Mataboge, and Mkhwebane herself who drove the probe.

Mvuyana later admitted that her investigation had left much to be desired but stopped short of agreeing with DA MP Kevin Mileham that it had been “shoddy”.

The investigator, however, did agree that it had not been one of “quality”.

None of the 26 individuals implicated in the costly SARS saga, which has landed Mkhwebane before the impeachment inquiry, had been interviewed by Mvuyana. 

She had also produced, for the inquiry, an incomplete investigation diary and failed altogether to submit her investigation plan, which appeared to be “lost”.

It was soon after the EFF chief whip and deputy president, Floyd Shivambu, lodged a complaint in 2018, that the circle around the “rogue unit” investigation had been tightened. Shivambu, according to Mvuyana, was a “willing complainant” who proved of “great assistance” to the PPSA.

Read more in Daily Maverick: “Gordhan still under attack, while Mkhwebane claims she had security clearance authorising possession of classified report” 

Peak State Capture

The Zondo Commission into State Capture found that former SARS commissioner Tom Moyane as well as former president Jacob Zuma played critical roles in capturing and dismantling the country’s revenue service, the pride of government until then.

It found that the “rogue unit” narrative had been deployed as an excuse to target SARS as its “investigatory and enforcement capacity was a hurdle to people involved in organised crime”. 

Read more in Daily Maverick: “Five things to know about the State Capture Commission’s findings and recommendations on SARS”

Moyane should be charged with perjury and all government contracts awarded to the US-based consulting firm Bain & Company were suspect and should be reviewed, the commission said. 

While Moyane has not been charged, Bain & Company has since apologised for its role in State Capture in South Africa.

SARS, said Zondo, had been systemically weakened to incapacitate its efficiency and the “rogue unit” narrative had been used to make massive changes, including the hounding out of top officials like Johann van Loggerenberg, head of the High-Risk Investigations Unit.

And it was this unit that Mkhwebane and others believed was spying on politicians.

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Fall woman

On Monday, Mvuyana told the committee she took full responsibility for the investigation and that Mkhwebane had at no stage directed the probe. 

However, in the end, she admitted that it was Mkhwebane who signed off on all reports as the head of the Chapter 9 institution. If insertions or changes were made later by her boss, “I would not argue”, said Mvuyana.

The controversial and classified 2014 report by the Inspector-General for Intelligence (IGI), Faith Radebe, on illegal State Security Agency activities at SARS formed the basis of Mkhwebane’s report but Mvuyana was adamant that she never dealt with it.

Also on Monday, Mkhwebane’s legal representative, Advocate Dali Mpofu, admitted the Public Protector had always been in possession of the classified IGI report and had been entitled to this through her top-secret security clearance.

Asked by evidence leader Nazreen Bawa what she thought of the several court rulings that have set aside Mkhwebane’s reports, Mvuyana replied: “Unfortunately, I can’t question judgments.” 

Her opinion of these, however, “I would like to keep to myself”. She admitted that as the lead investigator she had no idea that the Radebe report had been set aside, as were the Sikhakhane and KPMG reports.

She said the Public Protector did not usually deal with evidence and that investigators were tasked with this, although the PP did, from time to time, provide input.

Asked why the report of the Nugent Commission of Inquiry had not been included in the Rule 53 record, Mvuyana said: “It was in the public domain.” She denied that it had not been considered during the PP’s SARS probe.

Bawa said three items were missing from Mkhwebane’s Rule 53 record: the IGI report, the Nugent Report and an affidavit from Luther Lebelo, a former SARS executive who later became Mkhwebane’s chief of staff.

Enter Madonsela

Towards the close of proceedings, the committee chair, Qubudile Dyantyi, noted that he had received communication during the tea break with regard to former Public Protector Thuli Madonsela’s expected appearance on Wednesday.

Mkhwebane, in a letter, complained that Madonsela’s late submission of her statement (by three days) which Mkhwebane said was “unintelligible in parts” would be doing the inquiry a “disservice”. She requested that Madonsela’s testimony be rescheduled.

Dyantyi replied that Madonsela was due to testify on Wednesday and it would be up to the committee to make a decision. DM