‘Kangaroo court’ — Muted Mkhwebane in a flap over impeachment inquiry

18 Apr 2023

As Section 194 inquiry evidence leaders continued to take committee members through dense documentation on Tuesday, Busisiwe Mkhwebane took to Twitter to voice her disapproval.

@ParliamentofRSA you allowing the illegal and unlawful continuation of the Section 194 committee, no quorum of committee members , as the accused I am not present , my legal team is not present
What kangaroo process is this ?

— Adv Busisiwe Mkhwebane (@AdvBMkhwebane) April 18, 2023

The suspended public protector, who has been muted since the start of advocates Nazreen Bawa and Ncumisa Mayosi’s “landscaping” of evidence the past few weeks, tweeted: “What kangaroo process is this?”

Tagging Parliament on Elon Musk’s global village square, Mkhwebane complained that the continuation of the inquiry was “illegal and unlawful”.

“As the accused I am not present, my legal team is not present,” she added.

Proceedings continued regardless, with deep drilling into Mkhwebane’s SA Revenue Service (Sars) “rogue unit” report and the legal collateral fallout that brought her before this inquiry.

Back in 2017, the now late KPMG auditor, Johan van der Walt, set out how a team of 30 people had worked on various Sars investigations, including the Sikhakhane Report. They had reviewed over 850,000 emails, imaged 23 computer hard drives and considered more than 1.36 million documents.

Read more in Daily Maverick: Sars Wars: KPMG report – the Firm, the Lawyers, the Auditor and the Blame Game

This forms part of the work that committee members will have to digest as they take a week off from proceedings, with no date given at this stage for resumption.

Committee chair, Richard Dyantyi, intimated on Tuesday that “higher powers” were dealing with Mkhwebane’s legal bills.

Members would need to be “on standby” since a “flurry” of committee meetings had been scheduled for their return.

Judicial attacks

Members were taken through litigation between Mkhwebane and Minister Pravin Gordhan concerning the High-Risk Investigative Unit and the employment of former Sars deputy commissioner, Ivan Pillay.

When Pretoria high court Judge Sulet Potterill ruled in favour of Gordhan in setting aside Mkhwebane’s report, she launched a public attack. Through her preferred legal service provider, Paul Nbgobeni, she signed off on poison-pen articles on judges Potterill and Ronel Tolmay that were published online.

Read more in Daily Maverick: Wrong side of truth plus incompetence – documents reveal why Busisiwe Mkhwebane keeps losing in court

In December 2020, Gauteng division judges Selby Baqwa, Annali Basson and Leonie Windell directed that their findings — which confirmed the earlier ruling — be sent to the Legal Practice Council to consider Mkhwebane’s “shockingly inappropriate and unwarranted” attack on Potterill.

Read more in Daily Maverick: Biased Public Protector’s conduct ‘reprehensible’, High Court finds, hands Gordhan comprehensive victory

This ruling found Mkhwebane’s conclusion in her report — that Gordhan had established an illegal unit at Sars — as being “without foundation, particularly as this conclusion is based on discredited reports and unsubstantiated facts”.

The committee also heard how Mkhwebane, after obtaining a legal opinion that she was not entitled to access confidential Sars records during her investigation, sought a second opinion that resonated with her own. This, she had obtained from advocate Muzi Sikhakhane but had failed to inform Sars for several months that she had done so.

The committee and the courts have already heard that Mkhwebane had relied on the Sikhahkane panel report for some of her conclusions in her “rogue unit” report.

While the Sikhakhane panel had in fact recommended a Presidential Commission when the report was handed to then-commissioner Tom Moyane in 2014, Sars had then opted to appoint KPMG to pull it all together.

In 2017, KPMG SA CEO, Trevor Hoole, resigned along with seven executives in the firm’s audit, risk and tax departments as a result of a “comprehensive investigation” conducted by KPMG International.

Read in Daily Maverick: KKPMG: ‘Weak’ apology suggests company saw no evil, heard no evil – therefore did no evil

Public pressure resulted in KPMG revisiting its Sars report, stating later that the firm’s quality controls when probing the Sars investigative unit were “not performed to the standard we expect”. DM

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Judicial attacks