The Section 194 committee probing suspended public protector Busisiwe Mkhwebane’s fitness to hold office has made a number of scathing findings and on Sunday agreed that she handled the investigation into CR17 in an incompetent manner.
The committee has also agreed that a charge of misconduct and incompetence relating to the victimisation of staff in her office was sustained.
Evidence leader Adv Nazreen Bawa SC told the committee that Mkhwebane had relied on the wrong act and an outdated ministerial handbook when she investigated President Cyril Ramaphosa’s donations when he was campaigning to become party president.
The Constitutional Court in July 2021 had ruled that the Public Protector Act did not allow Mkhwebane to probe matters relating to political parties.
Bawa told the committee that Mkhwebane had in her appeal to the ConCourt made reference to the Prevention and Combating of Corrupt Activities Act as opposed to the Prevention of Organised Crime Act, which deals with money laundering.
“This effectively resulted in the court concluding that there was incorrect reference to the act.”
Bawa questioned whether there was a deliberate effort by Mkhwebane to try to make a finding under an act in which she had no jurisdiction to make a conclusion against Ramaphosa.
Bawa added that when the CR17 matter was in the high court, Mkhwebane had filed an answering affidavit on November 14 2019 in which she said the 2000 executive code was the correct code.
“But the use of the incorrect code was immaterial to her findings because she was basing it on deliberate misleading not on inadvertent misleading,” said Bawa.
“But two days later, on November 16, in her answering affidavit in the South African Revenue service (Sars) unit matter, she persisted in relying on the incorrect executive code,” she said, adding that was one of the difficulties she found on that reliance.
“When argument is being made before the high court, there is a reliance on the 2007 code in this matter but on the application of leave to appeal there is concession [that] that is wrong ... saying there was a reliance on the ministerial handbook, which is incorrect in doing that,” said Bawa.
She said when judgment was handed down on July 1 2020, the court found that Mkhwebane had used the wrong code.
The DA’s Mimmy Gondwe said: “I agree there were material errors of law. [Mkhwebane] relied on the wrong code and a wrong legislation, and honestly speaking, that doesn’t bode well for someone in her position and the office of the public protector.”
The committee also heard submissions from members on the so-called Sars rogue unit and Pravin Gordhan and how Mkhwebane had used the classified inspector-general of intelligence report to make findings on her investigation into the matter.
Executive manager of investigations in her office, Ponatshego Mogaladi, in August revealed how she met with EFF deputy president Floyd Shivambu on December 8 2018 to discuss his complaints against Gordhan.
She said Mkhwebane was supposed to chair the meeting initially but was not available.
Mogaladi said during the meeting, Shivambu sent her a copy of the classified 2014 IGI Report on WhatsApp.
A few days later, he sent it to her via email.
Mkhwebane’s version is that the report was dropped off by an anonymous person in her offices.
ANC MP Xola Nqola said: “Chair, let’s first concede that in the report of the IGI, there has been a lot of inconsistencies and incoherent statements. It points to the fact that we have been misled about the IGI report throughout.
“The first misleading statement was the fact that the report was just dropped off by an anonymous person.”
He said the committee heard that the report was dropped off by Shivambu and that he had sent it electronically as well.
“There must be a comprehensive investigation by the SSA [State Security Agency] on this matter. How did the report land in the hands of people who do not have a secret clearance… Through and through we have been sent from pillar to post by the public protector that, ‘I did not see the report’…which was deliberately misleading parliament which constitutes to gross misconduct from the side of the PP.
“This constitutes to gross misconduct. It equally fits the narrative that the PP is just a hired gun of some factions within political parties… She already had an outcome in mind...” said Nqola.
The DA’s Mimmy Gondwe said Mkhwebane failed to report to relevant authorities that she was in possession of the report.
“It makes one wonder to what lengths is she willing to go to reach a particular conclusion. As a PP we are expecting her to uphold the law and to be mindful of what the law says about the possession of classified documents and unlawful evidence. But she went ahead and relied on this report and that is extremely worrying that she did not even make an effort on her part,” Gondwe said.
Gondwe and Dorries Dlakude were among members who agreed that the matter must be referred to the SSA for further investigation.
Al Jama-ah’s Ganief Hendricks submitted that this was not an impeachable matter.
On the question of impartiality, fairness and independence in her investigation, DA MP Kevin Mileham said Mkhwebane did not fully investigate the matter.
“I think that this investigation [into the rogue unit] was flawed...” Mileham said.
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