It’s SSA vs Busisiwe Mkhwebane as she stands accused of illegally obtaining a classified report
The State Security Agency (SSA), under Minister Dipuo Letsatsi-Duba, has opened a criminal case against Public Protector Busisiwe Mkhwebane, charging her with theft of information and violation of South Africa’s security laws after she allegedly laid her hands on a classified state document.
The low-key warfare between Mkhwebane and Letsatsi-Duba blew out into the open last week, after numerous exchanges of correspondence and a meeting between the two failed to resolve a dispute that can be traced back to the allegations of a rogue intelligence unit at the SA Revenue Service (Sars) and factional bickering in the ANC.
Central to the dispute is a classified investigative report belonging to the SSA, which Letsatsi-Duba’s predecessor David Mahlobo had commissioned in 2014 – through the inspector-general of intelligence (IGI) – to look into media allegations of illegal operations by the spooks to destabilise Sars.
The secret report also flagged issues at Sars that needed closer scrutiny. The inspector-general could not probe these because the office did not have a mandate over the revenue agency.
After Mkhwebane’s repeated attempts to get the report officially from Letsatsi-Duba, City Press learnt, a copy was “leaked” to her by unidentified persons, who dropped it off at her office. Letsatsi-Duba wants it back.
She has turned to the SA Police Service (SAPS) for support after failing to convince Mkhwebane to hand the copy over and assist counter-intelligence investigators looking into the leak to her office as well as into investigative publication Noseweek, which published the contents of the report.
The SSA confirmed on Saturday that it had laid a criminal complaint regarding illegal possession of classified information.
Letsatsi-Duba said: “It is absolutely crucial that the person occupying the Office of the Public Protector respect the laws of our country and that she/he also understand the role of the Public Protector in our constitutional democracy.
“It is extremely disturbing to note that the incumbent, Advocate Mkhwebane, has not shown the necessary willingness to comply with the prescripts of the law as it concerns the classified report which is in her possession.”
“In spite of having been given ample opportunity to do so, Advocate Mkhwebane has not handed the report classified as ‘secret’ to the relevant custodian – the minister of state security. Unfortunately, Advocate Mkhwebane has not complied with the law and, as a result, the SSA has laid a complaint with the police.”
Police confirmed that a criminal case against Mkhwebane was opened recently at Lyttelton Police Station in Centurion and that the docket was later transferred to the Hawks.
According to the police case management system, officers opened a case of theft of information and “contravention of the information act”.
“The state is the complainant in the case and the Office of the Public Protector is the accused,” said a security cluster source, who is privy to the details.
According to the source, the Office of the Public Protector failed to obtain a subpoena through the legal route and received the information illegally.
“The case remains under investigation and will be handed over to the National Prosecuting Authority to decide whether to prosecute or decline,” said the source.
City Press established that Mahlobo’s report landed on Letsatsi-Duba’s desk and that Mkhwebane – who “respectfully declines to comment” – was keen to access its contents, particularly where it relates to Sars.
But government insiders have cast aspersions on Mkhwebane’s motives, claiming that her interest in the report was part of the factional battles in the ANC, pitting the new guard under President Cyril Ramaphosa against former president Jacob Zuma’s old guard.
They say her dogged pursuit of the document is aimed at undermining Ramaphosa and Public Enterprises Minister Pravin Gordhan, who was Sars commissioner at the time allegations of the rogue unit surfaced.
“She is being handled from somewhere,” a source said.
They pointed to her handling of Treasury director-general Dondo Mogajane’s failure to disclose in his job application that he had a criminal conviction for reckless driving – for which he paid an admission of guilt fine in 2011 – as well her ruling that a R4 700 debt judgment against him rendered him a “security risk”.
The office of the IGI said on Saturday that in August 2014, the SSA had instructed it to look into “media allegations against the agency’s Special Operations Unit and/or other branches of the SSA”.
“The report included certain aspects of Sars, bearing in mind that the IGI has no statutory mandate over Sars,” the office said, adding that the completed report was “submitted to the minister of state security as the tasking authority”.
The office of the IGI said they were also “made aware that the report was dropped off anonymously at the Office of the Public Protector”.
City Press learnt that after receiving a subpoena from Mkhwebane, Letsatsi-Duba had offered her a redacted version of the report to avoid identifying members of the agency and sources, but Mkhwebane insisted on a full version.
At the beginning of last month, according to sources with intimate knowledge, Mkhwebane informed Letsatsi-Duba that she had received a copy anonymously, but she still wanted the minister to comply and hand over the report officially.
The minister warned her that it was illegal and unlawful to be in possession of the copy.
In mid-February the two met, and Mkhwebane confirmed that she had the report. She repeated that it was dropped off anonymously.
Five days later, on February 20, Letsatsi-Duba again wrote to Mkhwebane, warning her that she was “in unlawful possession of the classified report”.
In response to City Press queries, Letsatsi-Duba said: “The minister is mindful of the constitutionally enshrined responsibilities of the Public Protector, but this does not detract from the protections in law for classified information.”
An affidavit by a senior manager in the SSA says that Mkhwebane is in violation of the Protection of Information Act and the Intelligence Services Act. “She has no right to retain that report,” the affidavit says.
Her possession of the classified document also violates the rights of the SSA’s agents and the agency itself, and has the potential of “disrupting its operations, and impairing its intelligence-gathering methods and its operations and cooperation with domestic institutions”.
Furthermore, her possession of the report can cause “undue damage to the integrity of individuals and endanger people’s lives”.
The affidavit says the “unlawful disclosure” of the report to Mkhwebane and Noseweek was done “with the intention to harm the agency, its members and the republic of South Africa.”
According to Noseweek, the sought-after IGI report found that Sars created a covert unit using covert and intrusive methods, in direct contravention of its mandate.
It also found that Sars had created a way to intercept and monitor communication, which went beyond targeting tax offenders, to be used for political purposes.
A political insider warned that Mkhwebane was playing political games.
“She is very dangerous. It is a pity that when her matter goes to Parliament, the ANC does not even want to talk about it,” said the source, referring to the governing party’s shutting down of the probe into Mkhwebane’s fitness to hold office.