Unanswered questions, Part Four: Lawyers ask Mkhwebane how Ace and Zwane dropped off Vrede radar

20 Jul 2023

Section 194 Inquiry lawyers have asked Busisiwe Mkhwebane detailed questions about her failure to investigate the role of politicians such as Ace Magashule in the Vrede Dairy scandal, and why her approach was so different when it came to the CR17 finances and SA Revenue Service’s ‘rogue unit’.

Those who have been following Busisiwe Mkhwebane’s Section 194 impeachment inquiry might recall “the photograph” – the moment that turned the tables in August 2022.

Wearing a pair of pink Valentino Garavani Rockstud leather pumps, Mkhwebane stood alongside Free State Public Protector head Sphelo Samuel during a visit to the Vrede farm in mid-March 2017. It’s a classic “head office visits region” photograph.

Until then, Mkhwebane had categorically denied that Samuel had been present that day, but that if he had been, she, in any case, did not remember him and his version of the truth “should be dismissed with contempt”.

Inappropriate footwear aside, there was no turning back on this one for Mkhwebane, who stands accused of seeking to remove the names of former ANC Free State premier Ace Magashule, former MEC for agriculture Mosebenzi Zwane and others from her report into the Gupta’s R334-million milking of state coffers.

Back in 2022, it was Samuel who testified to the impeachment inquiry about his boss’s “Tippexing” of the truth.

How the magic happened

What evidence leaders now want to know from Mkhwebane is how and why these high-profile ANC politicians and officials dropped off her radar.

Mkhwebane has so far missed three deadlines set in new directives to the multiparty 194 committee after lengthy delays caused by the suspended Public Protector’s legal woes.

Meanwhile, the committee’s lawyers, and its members, have sent lists of questions to Mkhwebane concerning issues raised during the hearings which she may challenge, confirm, deny or explain.

Read more in Daily Maverick: Unanswered questions, Part Three: Seeking clarity on role of ‘legal adviser’ Paul Ngobeni in Mkhwebane’s high-profile cases

Concerning Vrede, the evidence leaders noted that the investigation had spanned almost four-and-a-half years, of which 14 months were during Mkhwebane’s term. The first investigation had been initiated by advocate Thuli Madonsela.

Madonsela had been dissatisfied with the provisional report from the Free State Public Protector’s Office and had requested Samuel to probe the role of politicians in the matter. Madonsela’s term of office ended before the completion of the first report.

Finding Magashule and Zwane

When Mkhwebane assumed office in October 2016, the Vrede investigation was ongoing.

A fresh investigation was then undertaken at the behest of the National Assembly’s justice portfolio committee which had expressed dissatisfaction that key issues were not addressed in the report.

A second investigation resulted in the Vrede 2 report, released by Mkhwebane 18 months later on 21 December 2020. Neither Magashule nor Zwane were interviewed in the second probe, the committee heard.

“Adv Mkhwebane’s meeting with Mr Magashule, which she attended alone, was, on her version, not part of the Vrede investigation,” the evidence leaders noted.

Like Mkhwebane’s meetings with the State Security Agency and former president Jacob Zuma, she had failed to mention her visit to Magashule.

Mkhwebane also failed to investigate what caused the cruel death of the Vrede cattle; whether Estina had been a front for the Gupta brothers, and whether benefits to the company were “at the cost of the State, taxpayers and beneficiaries”.

https://www.dailymaverick.co.za/article/2019-12-02-the-estina-vrede-dairy-scandal-a-gupta-project-from-beginning-to-end/

Other strands Mkhwebane failed to pick up on were who the true beneficiaries of the project were and the role of ANC officials.

The core of the matter – whether the officials who served the interests of the Gupta family through the Vrede Dairy project were being politically protected – had also been left unexamined, they noted.

Mkhwebane had also not considered the diversion of benefits from the beneficiaries, value for money, evidence exposed in #Guptaleaks or the non-compliance with environmental legislation.

“As reported in the Vrede Report, it was Adv Mkhwebane who decided that the #Guptaleaks emails did not fall within the scope of the investigation.”

Double standards

Mkhwebane had put forward two versions for her tardiness: the first that the complaints about Vrede had “fallen out of her jurisdiction”, and then later, that the PPSA had been under financial pressure.

The evidence leaders asked whether these statements were not contradictory.

Questions by evidence leaders in the 119-page document are intense and include picking apart Mkhwebane’s argument that the ANC officials were being investigated by the Directorate for Priority Crime Investigation (the Hawks) at the time.

“On what basis is a Hawks investigation a substitute for Adv Mkhwebane’s investigation of a complaint properly lodged before her, especially as Chapter 2 of the Corrupt Activities Act specifically contemplates that a public protector may investigate a complaint in respect of matters even where the Hawks have a simultaneous jurisdiction in relation to corruption involving public money?” asked the committee lawyers.

They questioned the inconsistency of the PP’s approach to Vrede compared with the CR17 and SA Revenue Service’s “rogue unit” reports.

“In the Sars Unit case, Adv Mkhwebane investigated issues that had previously been investigated, notwithstanding the fact that criminal charges were pending and other investigations had been ongoing or completed,” they noted.

Why, the lawyers added, would she think a Hawks investigation precluded her “from fulfilling her constitutional obligations?”

In the CR17 matter, Mkhwebane sought to investigate and subpoenaed evidence “based on a suspicion of money laundering”, but in the Vrede matter, she stalled. How did the suspended PP explain these inconsistencies?

On Tuesday, Mkhwebane, alongside her husband David Skosana, held a press conference denying that she had abandoned the impeachment inquiry.

Read more in Daily Maverick: ‘President Mkhwebane’ — suspended Public Protector hints at possible post-inquiry career in politics

She announced that she was launching an application, her umpteenth, to have committee chair Qubudile Dyantyi removed as he had been “compromised” in the Joemat-Pettersson voice notes.

She also announced her possible entry into politics, post-inquiry.

“I want to tell my story about how I investigated CR17 and the rogue unit and what the judges said in those matters is not true. I was still going to testify. But that is what Tina said… the outcome is predetermined – they want to impeach me.” DM

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South Africa

How the magic happened

Finding Magashule and Zwane

Double standards