One of the red lights that have flickered like a neon sign in the dark throughout this historic hearing is the role of the State Security Agency (SSA), its former Director-General Arthur Fraser, and their relationship with Busisiwe Mkhwebane and her office.

How do we know this?

Advocate Dali Mpofu, representing Mkhwebane, gave a whiff of a preemptive strike on 7 March when he informed the committee that, incidentally, “there is no evidence that the SSA was involved in the operations of the PPSA” (Public Protector South Africa).

This was at the end of his mauling by former Public Protector Thuli Madonsela – called as a witness by her successor – who gave evidence last week. It was an own goal, all agreed.

Read more in Daily Maverick: “Inside Busisiwe Mkhwebane’s State Security Agency-riddled Public Protector’s Office”

Mpofu is well aware that significant evidence of the SSA’s and Fraser’s involvement has been provided to the committee by witnesses, most of whom Mpofu has described as “disgruntled with an axe to grind”.

It will need a very special, Mpofu-esque touch, to make this neon light pop and go away.

Read more in Daily Maverick: “Mpofu and Mkhwebane score own goal by calling Madonsela to impeachment inquiry”

Mkhwebane stands accused of serious misconduct. An independent panel found that there was enough evidence to warrant a Section 194 parliamentary inquiry that could end in impeachment.

No matter how much Mpofu and Mkhwebane and their acolytes want to believe that this is a political witch hunt by the Democratic Alliance, it is the Constitution in action.

Mkhwebane was allowed to exercise her legal rights every step of the way.

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The now suspended Mkhwebane has been dragged in kicking, screaming and clutching at the door frames, calling for postponements and mounting several court challenges.

The latest is being heard in the Western Cape High Court. It is an application by Mkhwebane for committee chair, Qubudile Dyantyi, and DA MP Kevin Mileham to recuse themselves. There had been an earlier, bizarre and unsuccessful back-door attempt to get the formidable evidence leader, advocate Nazreen Bawa, out of the picture.

Mkhwebane was finally forced to attend her impeachment inquiry when the Constitutional Court cleared the way.

While Mkhwebane is due to begin testifying on Wednesday this week, there have been discussions about postponing this to 20 March. However, Dyanti and the committee are willing, able and ready to continue.

The road is long

Mkhwebane was appointed Public Protector of South Africa by former president Jacob Zuma in 2016, a peak State Capture year.

That year, South African banks realised that doing business with the Guptas – Zuma’s benefactors – was a reputation stinker and shut down their accounts. The Reserve Bank also in that year fined the Guptas’ bankers – Bank of Baroda – for “deficiencies in controls”.

Mkhwebane’s predecessor, Thuli Madonsela, played a significant role in the downfall of Jacob Zuma, exiting the stage after dropping the bombshell Nkandla and the State Capture reports.

Arthur Fraser is placed at the centre of an off-the-books intelligence universe, directing Zuma’s illegal early release from jail on medical parole and dropping the Phala Phala stink bomb just in time for the ANC’s elective conference.

Read more in Daily Maverick: “Despite Arthur Fraser’s evidence labelled as ‘hearsay’, the spymaster checkmated Ramaphosa”

King Arthur, as Mpofu has hailed him, has loads of receipts from the Zuma era, during which he is accused of assisting, in some way, the former president to radically transform the country, its SOEs, its police service, its prosecuting authority and its judiciary – regardless of the Constitution.

And here we sit, radically transformed.

And there Mkhwebane will sit on Wednesday – hopefully.

Spies and lies

Mkhwebane’s three-month stint at the State Security Agency prior to her appointment as Public Protector will face scrutiny, for sure. It’s predicted that the Official Secrets Act or other regulations might be used as a defence. Anything is possible.

Replying in 2016 to a question from the DA’s Glynnis Breytenbach during her parliamentary selection process about her employment with the SSA, Mkhwebane said she did not see this as a demotion.

She had previously held senior management positions at Home Affairs for 11 years, she said, and had worked in China, and that becoming an “analyst” required “a different kind of expertise”.

“It is to make sure that we protect the Constitution. The Constitution still matters and it is making sure that the Constitution is protected,” she offered emphatically.

Read more in Daily Maverick: “Spies instructed Public Protector on SARB report”

Mkhwebane is before this inquiry because she is alleged to have withheld from her Rule 52 court records information that she had consulted with the SSA, as well as with then president Jacob Zuma in person, with regard to her now invalidated CIEX/Reserve Bank report.

Court documents revealed that Mkhwebane had introduced investigators to Mahendra Moodley – who was seconded to the SSA from the State Information Technology Agency under then SSA Director-General Fraser – as “an economist”.

Evidence points to Moodley as the author of the instruction which found its way into Mkhwebane’s CIEX report.

In the Reserve Bank matter, the Constitutional Court held that the Public Protector’s “entire model of investigation was flawed, and that she was not honest about her engagements”. 

She had also failed to explain, the court found, “why she had not disclosed any of her meetings with the Presidency in the final report, or why, contrary to her general practise, she did not produce transcriptions of her meetings with the Presidency or the State Security Agency”. 

The court found that Mkhwebane “had put forward a number of falsehoods in the course of litigation, including misrepresenting – under oath before the High Court – that the economic analysis which underpinned the final report was based on expert economic advice, which it was not”.

Mkhwebane is also accused of not revealing in her investigation into the SA Revenue Service’s so-called “rogue unit” that she had been in possession of a classified 2014 Inspector General of Intelligence report into SSA activities at SARS.

Known as the “Radebe report”, it named strings of agents and other operatives. It has since been invalidated by the courts.

In that instance, Pravin Gordhan, then minister of finance and a former SARS commissioner, was the target of the investigation. The office was highly weaponised in what has been described as an attempt to target opponents or obstacles to Zuma and his “business associates”.

The State Capture years were bleak for Gordhan (as well as SARS officials hounded out by commissioner Tom Moyane) as he faced a full-frontal attack not only from the Public Protector, but from Zuma himself, who fired Gordhan in 2017.

Read more in Daily Maverick: “Anger mounts against Zuma’s ‘reckless’ recall of Gordhan, Jonas”

Gordhan also became the target of Mkhwebane’s allies, EFF leaders Julius Malema and Floyd Shivambu. It was Shivambu, the inquiry has heard, who gave the classified Radebe report to Mkhwebane.

The third report that brought Mkhwebane to the inquiry is the Vrede investigation into the Gupta family’s milking venture in the Free State, leaving thousands of beneficiaries high and dry.

Here she stands accused of initially omitting the names of ANC officials and politicians – allies of Jacob Zuma.

Bigger picture

What we hope for, should Mkhwebane give evidence this week, is that a rather large chunk of a missing piece of the puzzle in the State Capture tragedy will fall into place.

We have heard at the Zondo Commission that the SSA and its Special Operation Unit, headed by Zuma’s “spy”, Thulani Dlomo, were repurposed to serve the political and personal needs of the former president at a gargantuan cost to taxpayers.

Chief Justice Raymond Zondo read out, with incredulity, the amounts allegedly splurged by the SSA on toxicology units, on Zuma’s private security and on media projects, as he chaired the Commission of Inquiry into State Capture. 

Read more in Daily Maverick: “SSA’s off-the-books projects – capturing media, making R54m a year for Zuma, and much more”

The State Capture inquiry only saw the light of day because Thuli Madonsela had started working on her “black swan” investigation shortly before her tenure ended.

Mkhwebane’s term has revealed a deep clash of values, the understanding of truth, what court judgments mean, the judiciary and even the Constitution itself.

For legal advice, Mkhwebane, herself an advocate, like Madonsela, turned to a dodgy “legal” expert, Paul Ngobeni, as well as a team of legal heavyweights to advise her on some of her biggest investigations. For this, they earned around R145-million over the years.

Read more in Daily Maverick: “Wrong side of truth plus incompetence – documents reveal why Busisiwe Mkhwebane keeps losing in court”

Most of the reports were set aside by the courts.

This coming week should be a turning point in the ongoing attempt to understand the machinations of the political meteorite that was State Capture and how it was set and kept in motion. DM