Suspended Public Protector Busisiwe Mkhwebane has maintained she did not hide the fact that she had an intelligence report relating to the South African Revenue Service (Sars) “rogue unit” in her possession.
On Wednesday, at the Section 194 Inquiry into her fitness to hold office, Mkhwebane began testifying about her report on the so-called “rogue unit” at Sars.
Rogue unit report
In the 2019 report, Mkhwebane found that the establishment of the rogue unit was unlawful and that Public Enterprises Minister Pravin Gordhan, who was Sars commissioner at the time, had violated the Constitution.
She also stated in the report that the unit had conducted irregular and unlawful intelligence operations and that Sars failed to follow procurement rules when it bought equipment from the State Security Agency.
The Public Protector had further concluded that Gordhan had violated the Executive Ethics Code by deliberately misleading the National Assembly in 2016, when he failed to remember that a member of the Gupta family may have been present at a 2010 meeting.
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She insisted that Gordhan was still guilty of violating the code even though the minister argued that he did not intentionally lie to Parliament.
In addition, Mkhwebane was accused of not disclosing that she was in possession of the classified 2014 rogue unit investigation report by then Inspector-General of Intelligence (IGI) Faith Radebe.
The document formed the basis of Mkhwebane’s report in which she claimed to have it “on good authority” that the IGI found that the “rogue unit” was not in line with Sars’ mandate and, therefore, violated the Constitution.
The inquiry last year heard evidence that EFF deputy president Floyd Shivambu, who laid a complaint against Gordhan, had emailed the classified IGI document to a senior Public Protector official in 2018.
‘Security conscious’
Giving her side of the story on what her lawyer, advocate Dali Mpofu, labelled as Mkhwebane’s “most litigated and contested report”, the public protector maintained it did not seem like “a bona fide mistake” that Gordhan misled Parliament.
“He should correct [his earlier answer] to Parliament, but he just remembered outside of Parliament that he met this particular individual,” she told the Section 194 Inquiry on Wednesday.
“In this instance, he conceded that he forgot about the fact that Ajay Gupta was there. It was apparent that he deliberately misled Parliament.”
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Regarding the IGI report, Mpofu asked Mkhwebane whether anyone would think she concealed that she had the document.
“Definitely not… a reasonable person will never think like that,” she responded.
Mkhwebane argued that the report was anonymously dropped off at her office.
She explained to the committee that she did not list the IGI document as a source of information in her rogue unit report because she was “being security conscious”.
“[The Constitution] demands of me to issue a report unless then there are circumstances which I need to take into consideration for the protection of the security of the country or the information.”
Watch the proceedings below:
Mkhwebane also said she did not understand why the courts came to the conclusion that she concealed the IGI report.
“At the end of day, being the public protector, we receive all kinds of information,” she said, adding that her responsibility was to obtain the report from the state security minister.
She said she wanted the IGI report declassified because she wanted to use the document.
“I wanted to make sure that I get it legally from the institution that produced it, in fact the custodian of the report,” Mkhwebane said.
‘Unsubstantiated facts’
The Constitutional Court, in November 2022, dismissed Mkhwebane’s attempts to appeal the rogue unit report.
Mkhwebane and the Public Protector’s office were subsequently ordered to pay the costs of Gordhan and former Sars commissioner, Ivan Pillay, who she unlawfully implicated in wrongdoing.
Gordhan and Pillay had initially successfully challenged the report in the Pretoria Gauteng High Court, which found that Mkhwebane’s conclusion that the minister established an illegal unit at Sars was “without foundation, particularly as this conclusion is based on discredited reports and unsubstantiated facts”.
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The court ruled that the public protector report “fails at every point” and was “the product of a wholly irrational process, bereft of any sound legal or factual basis”.
“It is clear that she approached her investigation with a preconceived notion, determined to make adverse findings against Minister Gordhan and Mr Pillay, thereby promoting the false rogue unit narrative,” the December 2020 judgment read.
The High Court also concluded that Mkhwebane was “dishonest”, on “the fact that the public protector, according to the report, had never seen nor verified the contents and findings of the [Office of the IGI] report”.
But on Wednesday, Mkhwebane insisted that her investigation was “purely to protect the public, nothing else”.