The suspended Public Protector has missed three deadlines to respond orally or in writing to questions by committee members and evidence leaders arising out of her impeachment inquiry.

In doing so, she has failed to defend herself in the face of damning evidence of State Security Agency (SSA) involvement and other blurred boundaries and lapses of judgment during her costly and controversial tenure.

Read more in Daily Maverick: Unanswered questions, Part One: Evidence of secret meetings with Jacob Zuma and SSA involvement unchallenged by Mkhwebane

In her 2019 report into the SARS “rogue unit”, Mkhwebane recommended that criminal charges be investigated against Cabinet minister Pravin Gordhan, SA Revenue Service Deputy Commissioner Ivan Pillay and executives Johann van Loggerenberg and Peter Richer. This was without affording any of the officials a hearing.

Years of costly litigation – totalling around R15-million – ultimately resulted in the Constitutional Court unanimously dismissing Mkhwebane’s appeal against the invalidation of her report. The Pretoria High Court had originally ruled in favour of Gordhan and Pillay in their challenge. 

The parliamentary committee has seen, in evidence, emails from Mkhwebane in which she describes Gordhan as “a threat to democracy” who needed to be “stopped”.

Read more in Daily Maverick: Mkhwebane called Pravin Gordhan ‘a threat to democracy’, and other bombshells at Public Protector impeachment hearing

Section 194 evidence leaders noted that in 2019, Pillay and Van Loggerenberg had, through their attorneys, called on Mkhwebane to stop accusing them of harassing witnesses and claiming they were threatening to poison or charge her criminally.

‘Out to get me’

The evidence leaders noted that on 15 June 2019, Mkhwebane had written to her attorneys, Seanego Attorneys, as well as to PPSA staff, alleging “there is proof of threats to arrest for money laundering, threats to poison me and actually my Protector has been poisoned (we have proof from the doctors)”.

The suspended Public Protector had alleged that her vehicle had been tampered with, that witnesses had been intimidated and that “two people died mysteriously when they spoke about the rogue unit”. 

Evidence leaders were keen to get sight of evidence Mkhwebane had concerning these serious allegations.

In questions sent to her, they asked, “Was it Adv Mkhwebane’s belief that members of the SARS unit had made the threats against her and/or attempted to poison her and/or her Protector? 

“If so, what proof did she have? If not, what was the relevance of the content of the email to the truth or otherwise of the statements she made in respect of unlawful activities of the ‘rogue unit’?”

Floyd’s gamble

Mkhwebane had indicated that her conclusions in the report, noted the evidence leaders, had been reached based on “independent investigations” and not simply reports from panels headed by advocate Musi Sikhakhane, KPMG and others.

“There is no unequivocal statement in the SARS Unit Report that Adv Mkhwebane had the IGI Report [signed off by Inspector General of Intelligence, Faith Radebe, in 2014].

“It is not specifically listed as a key source of information. Adv Mkhwebane also does not state in unequivocal terms in the SARS Report that she had the IGI Report,” noted the committee’s legal team.

Mkhwebane had not provided then IG, Setlhomamaru Dintwe, or the minister of state security, with a copy of the classified report when she met separately with both officials and had intimated that she “had it on good authority” what its findings were.

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

The 2014 classified report by Radebe was a document Mkhwebane was keen to use as the foundation of her pursuit of Gordhan and other officials.

It was then minister of state security, David Mahlobo, who had initiated the investigation after reports about a “rogue unit” began to appear in the Sunday Times. The newspaper later retracted and withdrew all the articles.

The committee heard evidence that it was EFF deputy president Floyd Shivambu who had dropped off a copy of the classified report at Mkhwebane’s offices. She had previously claimed this had been done “anonymously”.

Tin ear

The former head of the SARS High-Risk Investigative Unit, Johann van Loggerenberg, had approached the PPSA in 2016 as a whistle-blower, the evidence leaders noted.

“He was interviewed by PPSA staff and provided documentation disputing that the SARS unit was a ‘rogue unit’; showing a targeted campaign to discredit Mr Van Loggerenberg, Mr Pillay and Minister Gordhan by way of a fake ‘dossier’ titled ‘Project Snowman’.

“None of the documentation provided was included in the Rule 53 record, nor considered by Adv Mkhwebane during her investigation into the SARS Unit,” it was noted.

A supplementary affidavit filed with the high court by Pillay, which included that deposed by Van Loggerenberg, “was undisputed and not challenged by Adv Mkhwebane”, noted committee lawyers.

Van Loggerenberg had stated that in September 2014 he had placed the Sikhakhane panel “in possession of direct allegations and evidence in support of threats to SARS, demonstrating various attacks on SARS as an institution and undermining of its officials”.

Mkhwebane said the legal team had never mentioned this in her report and Van Loggerenberg had never been afforded a hearing or right to reply despite a request to do so.

Pillay’s criticism had been that the SARS Unit Report had accepted allegations about him and yet had discarded evidence he had presented.

The evidence leaders wanted to know from Mkhwebane where in her report she had explained why Pillay’s extensive explanations had been rejected.

While advocate Dali Mpofu, representing Mkhwebane, had put it to Van Loggerenberg that his client had relied on reports from “senior counsel, a judge, an audit firm and OIG all found that the Unit was unlawful”.

“In contrast, Adv Mkhwebane’s evidence was that she did not rely on those reports and only used them as leads and that they corroborated her independent investigation. Clarify which version is correct?”

It was noted that Mkhwebane’s investigation of the SARS Unit had related to events that had occurred 10 years previously and that proper circumstances needed to be shown for a reinvestigation to take place.

Besides, they said, Van Loggerenberg had been recruited in 1998, almost a decade before becoming a manager of the SARS Unit, and years before Minister Gordhan became the commissioner of SARS.

Mkhwebane had given weight to submissions by SARS employee Keletso Manyike who alleged that the SARS Unit had been used for “political meddling”, they noted.

Manyike had lodged a complaint accompanied by a “Broken Arrow” dossier in 2014 after he had been demoted. His exact wording later found its way into Mkhwebane’s investigation, said the evidence leaders.

“On what basis was his evidence preferred to that of Mr Pillay and Mr Gordhan, given that no interview or signed affidavit was obtained from him by investigators?”

Kroon apology ‘personal’

With regard to retired Judge Kroon, who headed one of at least six panels investigating “rogue” allegations and who later apologised, the lawyers noted Mkhwebane had only mentioned Kroon once.

Mkhwebane had argued before the committee that Kroon had made the apology personally and not on behalf of the panel.

“What evidence did Adv Mkhwebane have to support that Judge Kroon issued the apology in his personal capacity and not on behalf of the Board?” the evidence leaders wanted her to clarify.

The lawyers noted that had the “Sikhakhane Opinion” incorrectly interpreted the National Strategic Intelligence Act – as confirmed by the courts – then both Sikhakhane “and his juniors, and by extension, the SARS Advisory Board headed by Judge Kroon, did so too”.

“Is this disputed?” they inquired.

It is unclear what Mkhwebane’s next move will be in the face of the inexorable movement towards the Section 194 Inquiry deadline and the end of her term of office in October.

Part Three will unpack questions about the CR17 report. DM