SECTION 194 INQUIRY
Public Protector chief of investigations unable to explain how changes were made to CR17 campaign report he authored
While two of Busiswe Mkhwebane’s witnesses have told the Section 194 inquiry into her fitness to hold office that she never interfered with investigations, the evidence seems to indicate otherwise.
At the resumption of the inquiry on Thursday, Rodney Mataboge, the chief investigator at the Office of the Public Protector (PP), was unable to explain how changes found their way into the PP’s CR17 campaign funding report that he had authored.
Mataboge was recalled after former Public Protector Thuli Madonsela’s evidence was shifted to Monday and Tuesday next week.
The committee deliberated on how alterations to the wording of the Executive Ethics Code had found their way into Mkhwebane’s CR17 report in which she found President Cyril Ramaphosa had misled Parliament about funding for his election campaign.
The Constitutional Court set aside the report and in a scathing judgment in July 2021 found that the now suspended Mkhwebane had exceeded her mandate, had been wrong in law and fact, and that her report was “fatally flawed”.
The court found Mkhwebane had “changed the wording of the code to include ‘deliberate and inadvertently misleading’ ”.
“Having effected the change in the code, the Public Protector proceeded to conclude that the President had violated the code. It is unacceptable that the Public Protector did what no law had authorised her to do,” the court found.
Read in Daily Maverick: Another Mkhwebane report bites the dust, and it’s all clear for an impeachment inquiry
Three reports invalidated by the courts — the CR17 report, the SARS report and the Vrede 1 and 2 reports into the Gupta family’s foray into dairy farming in the Free State — were worked on by PP investigator Bianca Mvuyana and her boss, Mataboge.
It is these that have landed Mkhwebane at the Section 194 inquiry.
Read in Daily Maverick: Lead investigator in Mkhwebane’s ‘rogue unit’ probe admits work done was not of ‘quality’
Mataboge, as well as Mvuyana — who testified on 28 February — told the committee that only three people in the office worked on the reports; Mkhwebane, Mataboge and Mvuyana.
The standard practice of circulating reports to the COO and executive managers and for quality control procedures were done away with in these investigations.
And while ANC MP Boyce Maneli later asked Mataboge whether there had been any “consequence management” after the courts had raised “significant shortcomings” in the PP’s reports, Mataboge replied there had been none.
Rumours and conspiracies
Earlier this week, advocate Dali Mpofu said that for Mkhwebane to be part of a “conspiracy” against Cabinet minister Pravin Gordhan, as alleged in his response to the SARS report, she would have had to “recruit” the investigators.
Mataboge and Mvuyana said this would have been preposterous and impossible.
Evidence leader advocate Nazreen Bawa, referring to an email sent by Mkhwebane to Mataboge on November 2018 in which Gordhan was described as “a threat to democracy” and that he should be “stopped”, inquired what he made of this and whether he viewed it as an instruction.
Mataboge responded that although the email had been clearly addressed to him he had no recollection of it.
He also claimed no recollection of other emails and communications flighted at the hearing and said he would have to check his records.
While Mkhwebane did not place the statement about Gordhan in quotes in her email to Mataboge, Mpofu suggested to the committee these were not her comments but the words of a “whistle-blower”.
Mpofu also told the commission earlier that the comments about Gordhan “did not resemble the style of the Public Protector”, a sentiment Mvuyana agreed with.
Mvuyana herself was unable to present a full record of her diary or the investigation plan to the committee. She also said she had not interviewed the alleged “whistle-blower”, nor had she bothered to obtain statements from the 20 or so SARS officials implicated in the PP’s SARS “rogue unit” report.
Omissions and oversight
While Mataboge maintained that the PP had never asked him to remove any item or document from the Rule 53 record, an instruction for this to be done with regard to the “Gene Ravele dossier” in the SARS matter, was part of the evidence, said Bawa.
“The instruction is not for me,” Mataboge responded enigmatically.
In June 2018, Ravele, former chief officer for enforcement at the tax agency, told the Nugent Commission of Inquiry into SARS — so named as it was headed by Judge Robert Nugent — that the institution’s capacity to conduct criminal investigations and prosecutions had been derailed after the appointment by then president Jacob Zuma of Tom Moyane as commissioner of SARS in 2014.
Within a month of his appointment, Moyane, Ravele testified, had met with Sunday Times management and senior journalists. Two years later the Sunday Times withdrew its “investigations” into the “rogue unit” and apologised.
Ravele ended an almost 20-year career at SARS in 2015. Before his resignation, there had been attempts to suspend him. In 2017, after two years of being investigated by the Directorate for Priority Crime Investigation, all charges against Ravele were dropped.
Ravele told the Nugent Commission that surveillance equipment had been procured by the anti-corruption unit within SARS and not the High-Risk Investigations Unit (HRIU), of which Johann van Loggerenberg was the head.
Moyane, Revele testified, had described the work of the HRIU, as “vomit” and “a cancer”. The unit was at the time investigating the tobacco industry (along with other SARS units) and had shown remarkable success.
Mataboge told the committee he had never heard of the Ravele Dossier.
Read in Daily Maverick: Nugent Commission on SARS: The Numbers vs the Moyane/Mpofu Sideshow
Declassifying the classified
Mataboge said that he, like Mkhwebane, had top-level security clearance and therefore was entitled to be in possession of the Inspector-General for Intelligence, Faith Radebe’s report into State Security Agency activities at SARS.
While Mkhwebane in court papers did not acknowledge she was in possession of the report, on which she based her remedial action in that matter, Mpofu has claimed otherwise.
The “Radebe Report” has also been set aside.
Asked how often he had been given access to classified reports in his career Mataboge replied that such a report had “never come into my space”.
“And yet you could not remember it at all,” Bawa shot back.
“I could not remember because there were other reports, I get many reports,” said Mataboge.
Earlier in the week, Mvuyana testified that Mataboge preferred to make changes on paper as he disliked the “track changes” facility on documents.
This proved to be his undoing later when Bawa pointed out to Mataboge that the “track changes” on the final report in the CR17 matter indicated it was Mkhwebane who had altered the wording of the Executive Ethics Code.
He responded that she was entitled to do so.
“In your first drafts you had got the wording of the Executive Code correct,” Bawa told Mataboge, but this had been changed in later versions of the report.
Mkhwebane had also instructed Mataboge to “put in a legal opinion” that would be forthcoming from an “SC”.
The “SC”, or senior counsel, Mkhwebane had referred to in an email and who would be sought for a legal opinion, was advocate Muzi Sikhakhane, said Mataboge after testifying earlier that he did not know who the SC was.
“Is it unusual for a legal opinion to be provided by one person and which is furnished under the name of another?” Bawa asked Mataboge, referring to evidence that it was Paul Ngobeni, who is not licensed to practise law in South Africa, who provided it and not Sikhakhane.
“No comment,” the investigator replied.
Ngobeni, through Mkhwebane’s lawyers, Seanego Attorneys, had billed her for work done on reports and articles he had written slamming the judiciary, as well as an opinion he provided that Mkhwebane should seek a recission order from the Constitutional Court with regard to its judgment on the CR17 matter.
Mataboge said it was the Public Protector who in the end signed off on documents and that he was “only following instructions”.
With regard to the CR17 investigation, Mkhwebane, said Bawa, had based her report on two emails and had disregarded the evidence of campaign managers.
“What did you do to evaluate the authenticity and reliability of emails received from the whistle-blower?”
Mataboge declined to comment.
Shown an email Ngobeni wrote to Mkhwebane and Muntu Sithole, PP legal services manager, in which Ngobeni advocated for the rescission application to the Constitutional Court, Mataboge replied that this was the first he learned of the email and: “I would rather not answer.”
The committee will not sit on Friday, and on Monday Madonsela will finally take the stand. She submitted a statement earlier this week. DM