Judges have pressed the legal team of Public Protector Busisiwe Mkhwebane on whether she had seen a classified report by the Inspector-General of Intelligence when making findings against Public Enterprises Minister Pravin Gordhan.
Gordhan has taken Mkhwebane’s report into Gordhan’s alleged role in the establishment of an intelligence unit in the South African Revenue Service, on review, which is being heard by the Gauteng High Court in Pretoria virtually.
The case was attended online by Gordhan himself, former SARS deputy commissioner Ivan Pillay, former SARS executive Johann van Loggerenberg and former SARS spokesperson Adrian Lackay.
It was alleged in court that Mkhwebane, in her report into Gordhan, ordered that the IGI report be fully implemented despite the fact that she claimed in the report not to have had actual sight of it, which, at the time, remained a classified state security agency document.
Advocate Thabani Masuku, SC, on behalf of Mkhwebane, said she “had it on good authority” that the IGI report recommended criminal charges against Gordhan and others following its investigation into the so-called SARS “rogue unit”.
After being pressed by the judges, Masuku later maintained that Mkhwebane had in fact seen the report before drawing up her remedial action, raising questions from the judges who said Mkhwebane had contradicted herself in her report.
According to the Public Protector’s heads of arguments, Mkhwebane attempted to get a copy of the report from the Office of the Inspector General. However, this request was referred to the office of the state security minister, held at the time by Dipuo Letsatsi-Duba.
She then issued a subpoena in 2019 for the report and the Inspector-General “undertook to submit the report to the Public Protector after consultation with the Minister of State Security”.
During this period, however, the Public Protector received the report from an anonymous source, the court papers said, but there was a dispute about whether she could lawfully rely on it during her investigation.
However, Judge Selby Baqwa took issue with this, asking if the court should let the remedial action stand despite the fact that “the Public Protector did not even have that report when she made that remedial action”.
Masuku replied that he did not know how it was concluded that Mkhwebane had not seen the report.
“The Public Protector tells us that she spoke to the Inspector-General [who] told her that the report existed,” he said.
Masuku added that Mkhwebane had asked for a declassified copy of the IGI report, adding: “That must say something about whether or not she had the report”.
He maintained that Mkhwebane “had it on good authority” what the report recommended, to which Baqwa replied “what does that mean?”
“Does that mean she had the report, or she did not have, can you just clarify?” Baqwa asked, adding that in her report the Public Protector did not say whether she had read the report but instead maintained that “she has it on good authority”.
Maskuku said she did have the report “because she would not have issued remedial action on a report that she had not seen”.
Masuku said Mkhwebane had asked for a declassified version of the report which she could release into the public domain as part of her investigation, however, Mkhwebane did have the report and had read it before issuing remedial action after her investigation.
He added that if Mkhwebane had a classified version of the report there would have been legal complications, but she also could not disclose a classified version of the report to the public.
In the Public Protector’s heads of arguments, Mkhwebane maintained the court should evaluate the merits of the review application based on information that was before her during her investigation.
She said the findings of the IGI report still stood despite it being set aside.
“Essentially, the IGI report records chilling instances of rogue intelligence activities conducted by this rogue unit which stand even if the report has been set aside on the basis that the IGI should not have investigated these illegal activities of the SARS unit.”
After it was agreed to give Mkhwebane a declassified copy of the report with redactions of sensitive information, there was another dispute about the scope of these redactions.
However, the State Security Ministry then launched legal proceedings against the disclosure of the un-redacted report.
At the same time, the IGI report was set aside by consent order between the IGI, the state security minister and Van Loggerenberg.
Mkhwebane added that the report should not have been set aside while the case with the Minister of State Security was ongoing.