Public Protector rejects claims she is a ‘Zupta’ deployee as she squares up to Gordhan, Ramaphosa and Madonsela, among others
Despite facing a parliamentary inquiry that could result in her being axed, Public Protector Busisiwe Mkhwebane has come out with a vengeance, warning President Cyril Ramaphosa that he was not entitled to “cross-examine” witnesses in the Bosasa case, and she revealed details regarding further investigations into Public Enterprises Minister Pravin Gordhan.
In a wide-ranging interview with City Press, Mkhwebane also harshly criticised former Public Protector Thuli Madonsela’s continued public pronouncements on the work of her office and rejected perceptions that she was a beneficiary of the “Zuptas” – former president Jacob Zuma and the Gupta family.
She also revealed that she was probing more Cabinet ministers, including Health Minister Zweli Mkhize, Defence Minister Nosiviwe Mapisa-Nqakula, and Higher Education, Science and Technology Minister Blade Nzimande.
At the end of last month, Mkhwebane provisionally found that Ramaphosa had “inadvertently” misled Parliament and had failed to declare the R500 000 donation to his 2017 ANC leadership campaign from former Bosasa chief executive officer Gavin Watson.
President Cyril Ramaphosa
On Friday, Mkhwebane said the Public Protector Act made no provision for an interrogation of witnesses in a manner that drew the office into an accusatorial trial court process instead of an inquisitorial one.
This follows Ramaphosa’s request to “exercise his entitlement to question firstly the complainant [Mmusi Maimane] and several other witnesses who would have appeared before the Public Protector during the course of this investigation”.
In addition, said Mkhwebane, DA leader Maimane could not be questioned because he was not “a witness that appeared before the Public Protector” in line with the provisions of the act.
She said Ramaphosa’s legal representatives were informed that “Maimane does not fall within that particular definition because it refers to a witness who has been subpoenaed to appear before the Public Protector”.
Mkhwebane said that, according to the act, if it was discovered during an investigation that a person like Ramaphosa was implicated, they would get an opportunity to respond or give their side of their story.
Other parts of the legislation state that the implicated person or their representative shall question any witness through the Public Protector and per the Public Protector’s determination.
“So I would determine the process because we are not a court, but an inquiry,” she said.
Mkhwebane said Ramaphosa had already sent the list of questions he wanted to place before Watson, adding that she would decide whether “it is necessary to interview or send the questions to the witness to respond in writing”.
Ramaphosa had been given until Thursday to respond to Mkhwebane’s preliminary findings.
He asked for an extension until June 28, but she denied the request and the deadline is now Friday.
“We should not run our process as if it is a court of law where the witness is interrogated. It is like you ask questions of clarity as an implicated person. Cross-examination brings in the trial environment. It is again my discretion to decide.”
In such instances, she said, “you do not want to expose witnesses to an antagonistic way of doing things. The witness is assisting, and we do not want to put them in a position where they feel they are the ones being investigated.”
‘I DON’T ACCOUNT TO THULI’
Mkhwebane said the narrative that she was a “Zupta” deployee started soon after she took office and had been sustained in various forms since then.
She had decided to remain silent in the face of this “wrong criticism”, but it has since gained the status of “the truth” because of continued repetition.
She said the claims that she was sitting on a report into the infamous incident when the Gupta family landed at Air Force Base Waterkloof outside Pretoria in 2013, including from Madonsela, was part of the “Zupta” narrative.
Former Public Protector Thuli Madonsela
She said her office had since been forced to clarify that Madonsela had decided not to probe the involvement of the executive (Cabinet) in the scandal.
“We wanted to show the public that it’s not true that the Public Protector is not pursuing that or that there is any investigation that has been conducted implicating the executive,” she said.
Mkhwebane added that she was concerned that Madonsela was playing to the media.
“The media should not dictate how we should relate with one another because she has my email address and, if she wanted to clarify anything, my door is open.”
Had Madonsela made contact, Mkhwebane would have shown her copies of letters that the erstwhile Public Protector herself wrote to the DA’s David Maynier and former justice minister Jeff Radebe, in which it was recorded that “[Madonsela] would no longer be pursuing the matter relating to the executive, but how the ministerial task team treated [senior air force official] Lieutenant Colonel Christine Anderson”.
Anderson’s sworn affidavit had implicated Zuma in the Waterkloof scandal.
Mkhwebane said it was “unnecessary for us to be portrayed as if we are fighting, because I’m not”.
She said other former Public Protectors Lawrence Mushwana and Selby Baqwa had given Madonsela space to do her work without interference.
What was more “problematic”, said Mkhwebane, was Madonsela’s timing “because I am facing this media onslaught, and she comes in at this particular time and we wonder if it is necessary”.
She pointed out that, if the Waterkloof investigation and report had been completed in 2014, “one wonders why Madonsela did not issue the report then”.
She said it was the same issue with the Vrede dairy report.
“Why did she not issue [the] Vrede [report] in 2015 if it was ready and the investigation was complete? All the reports I’m hammered for are her investigations. The [Bankorp-Ciex] case stayed for years; the investigation was complete, so why not finalise it?
“I hope she can find it in her heart to write to me or even arrange a meeting, and we can show her the records so she also does not think we are falsely accusing her,” said Mkhwebane, adding that she extended the courtesy even though she did not “account” to Madonsela.
“I see she is instructing that the records be availed to the state capture commission. Well, apparently, we have received the request from the commission, and we will cooperate with the commission. But, then again, I am not the subject of investigation at the commission. I will tell the public what documents are available in the file and we will avail the documents to the commission.”
She said it was also odd that Madonsela would speak about records being handed over to the commission just after the commission sent a request for them.
LONG WALK WITH PRAVIN
Mkhwebane said she opted to use digital channel YouTube to announce that she would be serving Gordhan with a section 79 notice because, “when I send things to him, he then rushes to take it to the media and I get bashed that I am harassing him, so I wanted to inform the media”.
But, she said, “it is a long road between me and him”, adding that the full list of investigations against Gordhan around the affairs of the SA Revenue Service (Sars) included:
. Alleged irregular tender processes and appointment of software developers Budge, Barone & Dominick by Sars;
. The alleged misleading of Parliament in relation to meeting the Guptas;
. The so-called rogue unit at Sars;
. The alleged appointment of Ivan Pillay to act as Sars commissioner even though he did not have the requisite qualifications;
. Sars’ alleged failure to follow the correct procurement processes in the appointment of Accenture;
. Sars’ alleged irregular extension of an IT tender for 12 years, resulting in fruitless and wasteful expenditure that has escalated to R8 billion;
. Sars’ alleged purchase of an IT company called Interfront for R72 million, although the company was allegedly worth R2 million at the time.
Mkhwebane said “all these are issues that form part of two separate investigations”.
MORE MINISTERS ON THE RADAR
Other ministers in Mkhwebane’s sights include Nzimande regarding allegations of maladministration and improper conduct.
The complaint relates to the alleged “failure by the minister and director-general to take action following the reporting of improprieties and/or indiscretions by concerned stakeholders in the Services Sector Education and Training Authority”.
Mkhize is due for a hearing regarding “alleged corruption by the minister in connection with the granting of a loan to Afric Oil by the Public Investment Corporation”.
Mapisa-Nqakula is accused of misleading the portfolio committee and the Standing Committee on Public Accounts when she answered questions about the Zeal Health tender, as well as questions about the former chief financial officer of her department.
Public Enterprises Minister Pravin Gordhan
ZONDO TO GET GUPTA LANDING RECORDS
Mkhwebane also spoke about her previous brush with administrators at the Zondo commission of inquiry into state capture when “the acting secretary demanded records [related to] Vrede and even [asked] to interview my staff”.
She subsequently met commission chairperson Deputy Chief Justice Raymond Zondo to air her concerns about the instructions because the Public Protector was a chapter 9 institution, so was independent and only accountable to Parliament.
“The report was then before court and only the court could review. I do not have a problem sharing information, but I do not think I should get that instruction from administrators and to even avail my investigators.”
Mkhwebane said her office and its investigators were “competent witnesses, but not compellable and, therefore, we are not forced or obliged to do this or that”.
She added that she read the approach of the commission’s secretariat as part of the narrative that she was unable to do her work. Zondo appeared unaware of the incident, according to Mkhwebane.
However, said Mkhwebane, Zondo had since written to her requesting records on the Waterkloof issue and, by Friday, the multiple lever-arch files were being prepared for delivery to the commission.