Busisiwe Mkhwebane relied on unregistered Paul Ngobeni’s legal advice when she referred to the wrong code in her CR17 report.

It was Ngobeni, evidence shown to the committee revealed, who had inserted the 2007 Executive Ethics Code, changing the legal use of the 2000 code used earlier by PP investigator Rodney Mataboge in the draft.

Ngobeni is neither a senior counsel nor is he registered to practise law in South Africa. When Advocate Dali Mpofu, still representing suspended Public Protector Mkhwebane took her through her testimony earlier, Ngobeni was not referred to at all. Not once.

Evidence that has emerged and was presented to members on Wednesday, was that Mkhwebane had personally approved an article by Ngobeni attacking Judge Ronel Tolmay for her ruling invalidating Mkhwebane’s Gupta Vrede Dairy investigation.

Mkhwebane responded in an email to Ngobeni that his draft was “good” and he could go ahead and publish it. Invoices flighted earlier showed that Ngobeni billed for six hours of work on this pet project.

In 2019, Mkhwebane had introduced senior PP staff to Kim Heller and the University of Zululand’s Professor Sipho Seepe (ghostwriters of Zuma’s 2021 biography Zuma Speaks) “to augment marketing of the Public Protector”.

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Heller was a consultant for Iqbal Survé’s Independent Media and a former member of the Economic Freedom Fighters (EFF).

This “marketing” included an attack on the judiciary and Cabinet ministers with accusations that the judiciary was being “mobilised” to “intimidate and remove” Mkhwebane. Heller and Ngobeni received R120,000 for their efforts.

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Ngobeni was formally described as “a fugitive from justice” by former Public Protector Thuli Madonsela after an early query about his professional status elsewhere in government.

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In fact, Ngobeni said to Mkhwebane in his fatally flawed email, Madonsela too had relied on the 2007 code in the “Nkandla” judgment, which he said had provided “a revealing insight into the dishonesty and political manipulation within the ConCourt”.

The facts are that the 2007 code was penned by former president Thabo Mbeki but never gazetted, which effectively renders the 2000 version law.

The committee was taken through an email by a PP official, the late Alfred Mhlongo, to Mkhwebane’s attorneys, Seanego, which read: “Ngobeni prepared analysis of the ministerial handbook issue relating to ‘inadvertently’ and ‘deliberately’ misleading Parliament after the fiasco with Pierre de Vos.”

It was constitutional expert, Professor Pierre De Vos’s take on the matter that had set the cat among the hawks, apparently. 

ConCourt should not waste its time entertaining Public Protector’s bizarre rescission argument

The bills for these thoughts, consultations and subsequent actions by Seepe and Heller were then fed through to Mkhwebane’s lawyers, Seanego Attorneys, who submitted them to the PPSA, which paid with taxpayers’ money.  

Mkhwebane, being led by Mpofu last week, insisted she had used the correct code on legal advice. Not a word about from whom.

Minding the gaps

As Mkhwebane jumped through legal hoops throughout her tenure, losing several high-profile political cases along the way and leading to her very impeachment, it was Ngobeni who played a key and strategic role.

The evidence leaders, advocates Nazreen Bawa and Ncumisa Mayosi, explained to members that there were 48 volumes of papers pertaining only to the SARS “rogue unit” report.

This week, the committee was taken to several major omissions left gaping after Mpofu had led Mkhwebane through her defence, including a WhatsApp to former PP COO Basani Baloyi while Mkhwebane was conducting her investigation into the CR17 finding.

The WhatsApp had been sent in May 2019 by the PP, Baloyi testified earlier, in which she stated “Coo. I worked with a few people to deal with the sabotage of the PG [Pravin Gordhan] camp, the notice almost ready for rogue, will issue this week and report will also be issued in the manner I will determine.

“The notice for the President is also ready, will call him this week to discuss the notice. It is not about you but one has to play the chess.”

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A day after the PP’s message to Baloyi about the Gordhan “sabotage”, she sent a further communication stating: “We meeting CR [Cyril Ramaphosa] on 30 May at 3pm at mahlamba. You part of the team, will give you hard copy to read and shred after.”

Mkhwebane had responded in court papers to this: “That is the nature of the inevitable chess game that comes with the territory of the office. Like a literal chess game, it features kings, queens, knights and no shortage of witting and unwitting pawns.” 

Said advocate Bawa to the committee: “When she comes to answer questions we can traverse it then.” 

I had it, sort-of

Evidence relating to the classified Inspector-General of Intelligence report, completed by the then IG, advocate Faith Radebe, in 2014 and which formed the basis of Mkhwbane’s voided SARS “rogue unit” report, was also presented to the committee.

Vast mounds of previously unseen correspondence between Mkhwebane, the IGI and the minister of state security have been presented to the committee. 

One of the charges Mkhwebane faces is that she failed to disclose the Radebe Report in her Rule 52 court record in the SARS matter.

Mkhwebane said she never denied having a copy of the report and explained that the frantic letters between her office and other institutions were evidence that she was attempting to obtain the document “legally”.

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

While Mkhwebane had said that the report had been dropped off at the offices of the PPPSA, Bawa told members on Wednesday that camera footage of the foyer could find no such “anonymous” drop-off.

In a letter to one of the rotating ministers of state security at the time in an attempt to secure the legit copy, Mkhwebane wrote that the premise of an earlier letter (from the minister) was “entirely mistaken”.

“It presumes I am in possession of an authentically classified secret document. This presumption ignores the steps I have taken to ascertain whether the document received by my office relating to my investigation is indeed what it purports to be, ie secret document from the office IG,” Mkhwebane wrote.

Bawa said the IGI report was “expressly not listed by its name” under the source documents in Mkhwebane’s SARS report. Neither was the correspondence between Mkhwebane and the minister of state security.

Mkhwebane, the minister wrote back to her at the time, was in “unlawful” possession of the IG report and the fact that she continued to do so was “disconcerting, especially in light of the express caution by the IGI to you concerning the statutory limitations imposed by the Oversight Act”. 

For Mkhwebane to “retain unlawful possession of the classified document in order to verify its authenticity or classification status, which has already been confirmed as unlawful by the IGI, would only aggravate the contravention of the law. 

“The fact that you, personally, and members of your office have Top Secret clearance, does not imply that your entire office will automatically have access to all classified documents,” wrote the minister.

In order to deal with what she perceived as a “threat”, Mkhwebane then sought an opinion from advocate Muzi Sikhakhane (who represented both former SSA boss Arthur Fraser and Jacob Zuma at the State Capture Commission). 

He had advised that the minister’s accusations were “premature” and Mkhwebane was “duty-bound” to complete her SARS report. “The minister, the advocate continued, “has no power to interfere with the Public Protector, it is premature for her to threaten that the Public Protector has breached any statute.” 

The inquiry will continue on Tuesday. DM