LAWSON NAIDOO: Busisiwe Mkhwebane wastes scarce resources on Gordhan witch-hunt
Parliament must restore the integrity of the public prosecutor's office
The public protector has often protested about the lack of funds made available to her office by the Treasury, arguing — as in the Vrede Dairy Farm case before the Pretoria high court — that these resource constraints have hampered her ability to effectively investigate matters. This would appear a legitimate concern as it is echoed by other chapter nine institutions. Indeed, Busisiwe Mkhwebane’s predecessor, Thuli Madonsela, also lamented the lack of resources for her office.
In fact, Madonsela appealed to the Treasury for an additional R3m in early 2016 to enable her to properly investigate and conclude the state capture report. She was granted R1.5m and finalised the report in October 2016, just before leaving office. Its remedial action included the establishment of the judicial commission of inquiry now headed by deputy chief justice Raymond Zondo, to further investigate and report on issues raised in that investigation.
PODCAST: Sunday Times Politics Weekly - “The President owes us an explanation”
In the face of these difficulties a key task of the public protector must surely be to prioritise investigations and make optimum use of the resources at her disposal to discharge her mandate. Why then does she appear to be prioritising complaints against public enterprises minister Pravin Gordhan? Especially as many of these “complaints” are stale and have been comprehensively dealt with by other bodies.
What other investigations have been sacrificed as a result of this singular pursuit? These three examples highlight the problem:
• The early retirement and pension top-up for former deputy SA Revenue Service (Sars) commissioner Ivan Pillay. The National Prosecuting Authority under the leadership of Shaun “The Sheep” Abrahams farcically charged and then withdrew charges of fraud against Gordhan and others in October 2016 relating to this matter.
While one accepts that even if no criminal offence was present this does not preclude an investigation into maladministration, the Nugent commission found that there was nothing unlawful in that arrangement for the early retirement by Pillay and his retention by Sars as a consultant. That this may be an undesirable practice and one that needs to be terminated, does not render it unlawful or unconstitutional and nor does it constitute maladministration. That the law may be an ass in permitting such arrangements does not empower the public protector to find against Gordhan, Pillay or Oupa Magashula.
• The investigation into the so-called “rogue unit” established at the SA Revenue Service (Sars) in 2007. The Sunday Times ran a series of sensational “exposés” on the operations of the rogue unit and was forced into an embarrassing climbdown in 2016 — it had been duped and colluded in printing false allegations about the unit, failing to uphold basic journalistic standards. The paper also issued an apology to Gordhan for its reprehensible conduct and damage to his reputation.
In 2017 KPMG retracted the report it had prepared at the behest of erstwhile Sars commissioner Tom Moyane, acknowledging that its finding that the establishment of the high-risk investigation unit — to give it its proper title — was unlawful, was incorrect. KPMG also offered to refund the fee of R23m it earned for this work, an amount now being disbursed to civil society organisations fighting state capture.
In 2018 judge Robert Nugent found the establishment of the unit was indeed lawful, even if some of its operations may not have been so. Judge Frank Kroon conceded to Nugent that he was wrong in his 2015 pronouncement that the establishment of the unit was unlawful, and apologised to Gordhan and other members of the unit. Meanwhile, Moyane had used the KPMG and Kroon reports to fire some Sars officials and restructure the organisation to denude it of its earlier effectiveness (put in place by Gordhan during his tenure as Sars commissioner).
Nugent also concluded that Moyane received a legal opinion in 2015 confirming that the unit was not unlawful, but he chose to conceal that opinion so as to perpetuate the narrative of the “rogue unit”. Thankfully, Moyane is now history, but has yet to be held to account.
• The EFF has lodged another complaint that Gordhan lied or misled parliament in failing to acknowledge that he had met the Guptas. This is based on an allegation that he met another businessman where one of the Guptas might have been present. Gordhan had steadfastly refused to accede to invitations from the Guptas and maintains he did not deliberately or knowingly meet them, as is alleged. This issue was also canvassed when Gordhan appeared before the Zondo state capture inquiry.
One of Mkhwebane’s excuses for limiting the scope of her probe into the Vrede dairy farm fiasco was that the issues would be covered by Zondo, even though when her report was published the terms of reference for the inquiry had not been finalised and nor had its hearings begun. Now, even though the issue has been aired before Zondo, she chooses to reopen the matter.
Mkhwebane has also not explained what “special circumstances” existed that prompted her to investigate matters that are more than two years old — this would apply at least to the rogue unit and early retirement matters. The Public Protector Act makes it clear that such special circumstances must exist before an old issue may be resuscitated, but Mkhwebane simply ignores this prescript and the legislation that governs her office. Yet she wants us to believe that she is just “doing my work” without fear, favour or prejudice!
Her motives must also be called into question when she chooses to release a statement via YouTube that she is serving a notice on Gordhan that he is implicated in her investigation into the rogue unit — the notice is intended to enable the implicated person to respond and ensure that the audi alterem partum rule is followed. Not only did Mkhwebane announce this on social media but it appears that she did so before notifying Gordhan, an unedifying lack of courtesy at the very least.
In a similar vein the subpoena to Gordhan to appear before her to answer questions relating to the early retirement saga a couple of months ago was leaked to the media before it reached Gordhan. It is difficult to avoid the conclusion that she is playing politics and targeting Gordhan despite her hollow protestations.
All this points to the fact that it is the (mis)conduct of the public protector that should be scrutinised. Is it not Mkhwebane who should be investigated for frittering away scarce public resources on pursuing such frivolous complaints? Parliament has the opportunity to do that now that the issue is before the legislative body, and thereby restore the integrity of the office of the public protector.
• Naidoo is executive secretary of the Council for the Advancement of the SA Constitution.