SECTION 194 INQUIRY
Where art thou, Dali? A tough week of burning questions ahead for Mkhwebane
At the close of proceedings on Friday, matters were as murky in Cape Town as a swimming pool at an abandoned Gupta mansion, with the committee chair Qubudile Dyantyi remarking that the risk of depleted legal fees was a threat that had now ‘materialised’.
Friday’s conclusion of Busisiwe Mkhwebane’s testimony, now expected to be dissected by the Section 194 impeachment inquiry’s legal team, slammed into a legal pothole on the way out.
Who is going to pay for advocate Dali Mpofu and the rest of the team which represents Mkhwebane as she is poised to jump from the frying pan, into the fire, so to speak?
Advocate Nazreen Bawa is due to question Mkhwebane on Monday, a much-anticipated exercise in fact-sorting, rather than political rhetoric and victimhood which has been the leitmotif of the inquiry so far.
At the close of proceedings on Friday, matters were as murky in Cape Town as a swimming pool at an abandoned Gupta mansion, with the committee chair, Qubudile Dyantyi, remarking that the risk of depleted legal fees was a threat that had now “materialised”.
It would be unfair to Mkhwebane, he added, should she be left hanging “in the middle”.
Mpofu was quick to add that his services were in great demand across the country and that he had already been contacted by Facebook rapist/murderer Thabo Bester.
Mpofu essentially told the committee that he was soon off to earn more than current “peanuts” in the criminal courts.
“We have other legal engagements if we want our children to eat and have bread on the table… The miracle [of someone picking up Mkhwebane’s tab] has not materialised,” said Mpofu.
With acting Public Protector Kholeka Gcaleka announcing that the Office of the Public Protector would no longer be footing the considerable legal bill, the inquiry is at a crossroads, with pleas for the Treasury to pick up the tab.
So far, about R24-million has been paid for Mkhwebane’s defence in her impeachment inquiry.
Mkhwebane told the committee: “I am very much concerned with the resources of the state. Why can’t we tap into the very resources you are using to pay the evidence leaders?”
She said she would not shirk appearing, but, “there will not be anything I will be saying because the Constitutional Court was very clear – legal representation of my choice,” she challenged the committee.
Mkhwebane is “the real Public Protector” – Mpofu
Mpofu, on the other hand, said he saw the wrangling over legal fees as the continuation of “a campaign really to vilify and basically, you know, besmirch the Public Protector”.
This was being driven by “clever blacks who are not so clever and racists…” Mpofu trailed off. The cost burden “should be carried by the PPSA or whichever organ of the state has to execute that duty, we don’t care,” argued Mpofu.
“People”, said Mkhwebane, were treating her, “as if I am no longer the Public Protector, unless they know something I don’t.”
Mkhwebane is in effect the suspended Public Protector, while her deputy, Gcaleka, now occupying the hot seat, is the actual PP. The law makes very clear provision for this. The office keeps on trucking in the meantime.
But Mpofu keeps insisting that Mkhwebane is “the real Public Protector”, the biblical Esther.
For those who missed Bible study, Esther was a young Jewish woman living in the Persian diaspora who finds favour with the king, becomes queen, and risks her life to save the Jewish people from destruction.
Read more in Daily Maverick: Alternate History Inc: Biblical Busisiwe Mkhwebane tearfully summons spirits of Winnie, Rosa Parks and Esther and Busisiwe Mkhwebane, the blessed lady of the Biblical Appointment, Public Protector of God, brought to you by God
The savage irony here is that Mkhwebane sought guidance from a Jew-hating, Hitler-loving, Holocaust-denying Stephen Goodson and his views on central banks while researching her CIEX (Reserve Bank Report).
She has even found it difficult to articulate the word “Jew” after a question about her choice to dig around 1938 Europe for solutions to modern banking problems.
“Those people who one may not criticise,” she said.
Still manufacturing consent
Quoting Chomsky (Chomsky has been a gossamer thread through Mkhwebane’s defence) Mpofu said all the evidence presented pointed to a cycle where “rich people” colluded with “journalists” to “manufacture consent”.
Manufacturing victimhood, on the other hand, is going to be difficult for Mkhwebane facing the Bawa treatment this week, and without a lawyer at her side.
The “narrative” that she was some kind of enemy of the people who had to be punished by the courts because she was investigating “untouchables”, complained Mkhwebane, had “started from day one” of her taking office.
Some of the heat came from Pravin Gordhan (former SARS commissioner and minister of finance with a roving target on his back) in his affidavits in the to-and-fro, protracted and costly litigation between them, she claimed.
The media, Mkhwebane explained to the committee, would then “pick up” on Gordhan’s accusations and the judges would “just repeat” these in their judgments.
On Friday, Mpofu and Mkhwebane said consistent attacks on her had been “choreographed” by political opponents, the media and the judiciary.
She had been “shocked” to learn that a judge had described her as an “SSA [State Security Agency] operative” in a judgment Mpofu had read out earlier to the committee.
“It says here you are a former SSA operative. Are you such a thing?” – Mpofu.
“No, hey, I never saw this one, shew…” – Mkhwebane.
“So have you ever been?” – Mpofu.
“That is so wrong. It is not true. I was never an SSA operative to anyone listening to what the DA is perpetuating.” – Mkhwebane
Over and over, she said she had been appointed by the SSA in July 2016 and had been working at Home Affairs in China under the Department of International Relations and Cooperation as a “public servant”.
“People just take what the DA says and they accuse me of being a spy, they have never proved that,” she said.
At some point, after mispronouncing either a “c” or an “s”, Mkhwebane begged pardon with a laugh, saying that in Russian it was pronounced this way and not that. She earlier informed the committee that she was learning to speak Russian in between numerous ongoing court matters.
Who’s controlling you?
Mkhwebane said there were SSA officials who were “operating overtly” and based at the Chinese embassy.
“They are working with intelligence on the other side. Someone who is working underground,” she said, revealing her understanding of tradecraft.
However, “I was never that kind of person. I was supporting the director of the Domestic Branch with whatever info I knew of and the application of the Constitution.”
With regard to her high-level security clearance, Mkhwebane has insisted this entitled her to be in possession of a classified Office of the Inspector-General for Intelligence report which she used to prepare her SARS “rogue unit” report.
She had also wanted top-level security clearance for officials at the PPSA.
“You do not know who is controlling them. SSA clearance [for an employee] goes deeper. Because that is what should be considered in this country.
“Who is paying you? Who is controlling you?” she asked, providing the answer: “They are paid by foreign intelligence, foreign countries.”
“You find NGOs funded by this foreign intelligence. Some are operating as journalists but they are foreign agents working to cause instability in South Africa,” said Mkhwebane sounding as if she might have memorised a paragraph in Zuma Speaks.
There was nothing wrong with being a state security operative, she added.
“It is good. They are risking their lives to protect us as South Africans.”
But, she sighed, it was, “God who allows us to go through this so that we can be strengthened. Again, it is a lesson to everyone. Fine, I have been sacrificed and humiliated but it is for a good cause for generations to come. They will see, yes there was this judgment [that she was a spy], but this is what transpired. I was never this.”
But even if she had been part of the SSA, “you are doing what is best for the country. You are protecting us.”
Spoken like a true leader.
Whose truth is it anyhow?
Why, asked Mkhwebane, would anyone hold the views of retired judges Frank Kroon (who headed the Kroon Committee) or Robert Nugent (who chaired the Nugent Commission of Inquiry into Tax Administration and Governance by SARS) more highly than those of advocate Muzi Sikhakhane?
Read more in Daily Maverick: A Public Protector of reprehensible conduct
The Nugent Commission recommended that commissioner Tom Moyane be criminally prosecuted (the clock is still ticking) and that SARS set aside contracts and recover expenditure incurred during Moyane’s tenure.
Read more in Daily Maverick: Nugent Commission final report recommends criminal prosecution and far-reaching changes to restore SARS
The Sikhakhane panel was an external jury of sorts, appointed in September 2014 by Ivan Pillay, to investigate allegations of impropriety against Johann van Loggerenberg, head of the SARS High-Risk Investigations Unit.
Mkhwebane initiated an investigation after a complaint lodged by the Economic Freedom Fighters (EFF) and issued a report on 5 July 2019.
Apart from the adverse findings she made against Gordhan, the report also implicated Pillay and Oupa Magashula, both former employees at SARS, in “serious misconduct, maladministration and criminality”.
It was this report which prompted the affected parties to launch a review application to declare the issue of the report unlawful and have it set aside. This was later accomplished when in November 2022, the Constitutional Court dismissed Mkhwebane’s application for leave to appeal.
Read more in Daily Maverick: Constitutional Court ruling finally slams door on SARS ‘rogue unit’ saga
“When it is a white person or another race, then they are treated different. Sikhakhane is also legally qualified. Why do they prefer Nugent or Kroon?” asked Mkhwebane.
“We need to change that while going forward as the leading party which still has the majority to remove these systemic issues that are still there, but sometimes it is subtle, you can’t touch it and black people are used to perpetuate it,” she said enigmatically.
“Sikhakhane did the best he knows,” said Mkhwebane.
As “leaders who can make changes, including judges”, people needed to ensure “we are changing the mindset when it comes to a different race, it needs to be believed”.
Gordhan, Mpofu spat out, at some stage placed himself “higher than a president” in fact, he had “made himself a king”.
Mkhwebane had found herself battered and bruised in her long-distance litigation against Gordhan and other senior SARS officials because she dared to take him on, him and other “untouchables”.
Mpofu picked up the pace, stating: “It starts with Gordhan who puts this spin on the issue in his affidavit, then it gets imbibed and put in a legal argument which then gets reflected in a judgment and then that is what finds its way itself into the impeachment motion of Mazzone [Natasha of the Democratic Alliance] and then off she goes.”
Mpofu appeared to have forgotten to add the media to the cycle as Mkhwebane claimed earlier.
Break the chains
Her impeachment process, which she rejected, Mkhwebane told the committee on Friday, would break the chain of state abuse against anti-corruption crusaders.
“This process will break that chain. The system will use any gap and use us to be continuously oppressed or creating an institution that is not serving the masses.
“Those who have capital, they will continue to litigate through the courts, leaving people hopeless with no one to assist,” she asserted.
With regard to punitive personal costs the courts have ordered against her, she asked: “What does it do to my family, what will it do to other heads of Chapter 9 institutions? Capital will want to seat themselves in that space. They will take you to court,” she warned.
Maybe this nightmare “can be turned around by another administration” said Mkhwebane, who looked splendid in a red blouse matched by Mpofu’s red shirt.
“This goes back to the issue of the constitutional democracy you are speaking about. Is it really benefiting the masses? Is it really assisting in this situation we are facing in this country?” DM