Constant Gardeners: Mkhwebane and Mpofu ‘landscape’ all the way back to Zuma Spy Tapes at impeachment inquiry

Suddenly, former president Jacob Zuma was back in the room, in the air, looming large in the evidence being led by Busisiwe Mkhwebane’s legal representative, advocate Dali Mpofu.

It is common knowledge that it was Arthur Fraser who delivered the taped conversations between then National Prosecuting Authority (NPA) head Bulelani Ngcuka and Scorpions boss Leonard McCarthy to Jacob Zuma’s legal team in 2009.

Fraser, working at the time under instructions from the Mbeki government, had happened on the recordings while investigating, for the National Intelligence Agency (NIA), an early ANC cloak-and-dagger game – the Special Browse Mole report.

This report claimed that Zuma, president-in-waiting, was being propelled to power by a foreign-funded operation. The fingerprints of “old apartheid” operatives were all over Browse Mole, said experts at the time.

More than 700 charges against Zuma, all relating to the Arms Deal, were dropped by Mokotedi Mpshe – who replaced Ngcuka as NPA boss in 2009 after his suspension as a result of the “Spy Tapes” – thus opening the road, as Brenda Fassie sang, for Msholozi to be swept into the highest office.

Back in 2009, Mail & Guardian journalists Pearlie Joubert and Adriaan Basson uncovered that Fraser had done a “political flip-flop” after Zuma’s triumph at Polokwane and had handed the NIA recordings – legally obtained during his probe of the Browse Mole report – to No 1’s legal team.

The rest is buried in the annals of South Africa’s post-democratic account of extensive and extended lawfare which currently continues at the Pietermaritzburg Division of the High Court of South Africa, where Zuma should (should!) soon finally faces those corruption charges.

Which unit are we talking about?

In a letter dated July 2022 to acting Public Protector Kholeka Gcaleka, SA Revenue Service (SARS) Commissioner Edward Kieswetter went to great pains to point out that Mpofu and Mkhwebane were “misleading” the parliamentary committee.

“For the purpose of avoiding all and any doubt and clarifying the matter, I wish to state unequivocally that the phrase ‘equipment’ that formed part of the Public Protector’s investigation in the alleged so-called rogue unit, does not mean that the equipment belonged to the High-Risk Investigating Unit (HRIU),” Kieswetter wrote.

SARS’ position was that it had a legal mandate to gather lawful business intelligence in terms of the tax and customs laws administered by SARS and that the HRIU was a lawfully established unit within SARS, mandated to investigate illicit trade.

The “equipment” in question, Kieswetter added, “was not procured nor used by the HRIU. It was procured in line with SARS procurement policy and used by a unit erstwhile called the Anti-Corruption and Security Unit, currently known as the Anti-Corruption Unit.”

On Thursday, Mkhwebane and Mpofu argued that evidence the Public Protector had considered in her SARS report was that then deputy commissioner Ivan Pillay had allegedly received a Section 127 approval from Mbeki, which resulted in the eavesdropping.

Pravin Gordhan, later to become minister of finance (during the year Mkhwebane conducted her investigation) was SARS commissioner from 1999 to 2009, when these investigative units were created.

SARS investigators Helgard Lombard and Johan De Waal, in an interview with Zuma-appointed commissioner Tom Moyane in 2015, set out that the HRIU had not been illegal.

They explained to Moyane that Zuma and other high-profile politicians had never been surveilled by the unit and that no equipment had been bought.

It is these recordings, or a transcript (at least an edited version with chunks missing), that Mkhwebane and Mpofu sought to refer to on Thursday, as the day’s evidence in the “rogue unit” graveyard continued. 

Evidence leader advocate Nasreen Bawa objected to Mpofu’s attempt, stating that the “Moyane tapes” had not been verified; that the two men (Lombard and De Waal) were interviewed after Mkhwebane had released her report, and that Moyane’s evidence was thus “hearsay”.

It has since come to light that the two investigators also revealed to Moyane during that conversation that they had uncovered a conspiracy by the State Security Agency (SSA) which had included Belinda Walter, triple-agent also for British American Tobacco, and her handler Chris Burger, alongside others in the SSA.

Walter had a short-lived relationship with Johann van Loggerenberg, then head of the HRIU.

Mkhwebane’s taking up a complaint that fell outside the two-year time limit imposed on PPSA investigations, the high court found, had not been justified by a “special circumstance”.

Mkhwebane insisted to the committee that she legitimately conducted the investigation into SARS, while the courts have found otherwise.

The court judgment included the wording:

“However, if we are wrong in this regard and the Public Protector had the necessary jurisdiction to investigate the complaints, we will nonetheless consider a review.”

This, argued Mpofu, proved that “the door had been left open” for judges’ rulings to be considered “wrong” at times.

The classified report

With regard to a 2014 classified investigation by the Office of the Inspector General for Intelligence (IGI) and its then incumbent, Faith Radebe, Mkhwebane maintained she had never misled anyone about being in possession of the report.

One of the charges Mkhwebane faces is that she withheld this in her Rule 53 court record. On Thursday, the suspended PP said she was baffled as to how the high court had found she had not been honest about this.

However, her frantic attempts to strongarm the new IG in 2019, as well as two ministers of state security, into releasing the report, suggest she was aware that she needed a “legit” copy.

What the committee is bound to explore later is how Mkhwebane is going to explain the potentially prosecutable crime of being in possession of the IGI report all along and failing to follow precepts in this regard.

She has admitted to using the report in compiling her report on SARS. This was without providing those implicated an opportunity to respond.

Earlier this week, Mkhwebane said she had withheld information about the report to “protect SSA agents”.

However, it has been revealed that none of the people in Radebe’s report was an agent, but were “associated” with the SSA. 

These included Inzo Ismael of the Principal Agent Network; Thulani Dlomo, Special Operations Unit (SOU) head; Mandisa Mokwena from the SSA’s Economic Intelligence Unit (EI) and the SOU; Chris Burger and Madeleine Schlenther, also of EI; as well as Mike Peega, a former special forces combatant who was later arrested for rhino poaching.

Read more in Daily Maverick: Zuma’s spy state: A decade of unfettered surveillance, secrets, lies and lootings, propped up by a private army of spies

One of the findings of the Zondo Commission was that Dlomo, Jacob Zuma’s personal spy, unlawfully established a Central Directorate for Special Operations within the SSA, accountable to nobody but the then president.

His unit had access to near limitless secret funds for a variety of propaganda projects targeting the judiciary, media, trade unions, civil society, NGOs, academia and ANC and government officials perceived as potential “enemies of the state”.

The other individuals Radebe named included Brigadier Casper Jonker of the DPCI and multi-agency tobacco task team head, and Colonel Hennie Niemann (Walter’s handler).

None of the individuals named provided affidavits to the IGI and the records of their interviews have since “disappeared”.

The inquiry continues on Friday. DM