{"id":10348,"date":"2019-12-15T00:02:34","date_gmt":"2019-12-14T22:02:34","guid":{"rendered":"https:\/\/amabhungane.org\/?post_type=stories&#038;p=10348"},"modified":"2024-10-25T12:43:18","modified_gmt":"2024-10-25T12:43:18","slug":"state-capture-2-0-part-1-spies-instructed-public-protector-on-sarb-report","status":"publish","type":"post","link":"https:\/\/further.co.za\/amabwp\/state-capture-2-0-part-1-spies-instructed-public-protector-on-sarb-report\/","title":{"rendered":"State Capture 2.0 Part 1: Spies instructed public protector on SARB report"},"content":{"rendered":"\n<p class=\"wp-block-paragraph\"><iframe loading=\"lazy\" src=\"https:\/\/w.soundcloud.com\/player\/?url=https%3A\/\/api.soundcloud.com\/tracks\/729288184&amp;color=%23ff5500&amp;auto_play=false&amp;hide_related=false&amp;show_comments=true&amp;show_user=true&amp;show_reposts=false&amp;show_teaser=true&amp;visual=true\" width=\"100%\" height=\"300\" frameborder=\"no\" scrolling=\"no\"><\/iframe><span class=\"aglet_caption\">AmaBhungane&#8217;s Sam Sole speaks to 702 about the whistleblower affidavit.<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Public protector Busisiwe Mkhwebane\u2019s controversial June 2017 order directing Parliament to amend the Constitution to change the mandate of the South African Reserve Bank was handed to her on a piece of paper by a State Security Agency official, an affidavit seen by News24 and amaBhungane states.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The wording of the SSA recommendation, which included exactly how the Constitution should be amended, found its way verbatim into Mkhwebane\u2019s final report, dubbed the CIEX report. This raises new questions over her relationship with the spy agency.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">It also raises questions over the conduct of senior SSA officials and their involvement in a clandestine scheme to nationalise the SARB under the cloak of a report by the public protector.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Mkhwebane\u2019s report emerged at the height of the Zuma administration\u2019s attempts to bring to heel institutions holding out against state capture, notably the national treasury and the SARB.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Her report was billed by a senior SARB official as a \u201cbrazen attack\u201d on the independence of the central bank, and received swift backlash and condemnation.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">She was roundly criticised in successive court judgments that set aside the report, and ordered to pay some of the legal costs out of her own pocket over her lack of candour and transparency.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The Constitutional Court found she had acted \u201cin bad faith and in a grossly unreasonable manner\u201d.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Now, a shock affidavit has revealed the true extent of Mkhwebane\u2019s improper and apparently dishonest conduct \u2013 not only in the CIEX\/SARB matter, but also in her investigation of the Gupta-linked Vrede dairy farm scandal (see <a href=\"https:\/\/amabhungane.org\/stories\/state-capture-2-0-part-2-mkhwebane-ordered-investigator-to-remove-information-on-ace-zwane-in-estina-report\/\">Part 2<\/a>).<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">[sidebarContentQuote align=left]Investigative journalism takes time and money. Help us do more. <a href=\"https:\/\/amabhungane.org\/be-an-amab-supporter\/\">Be an amaB Supporter<\/a>.[\/sidebarContentQuote]<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The Estina report too was set aside by the courts, where she was again criticised for a lack of honesty.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The affidavit was deposed to under the Protected Disclosures Act by a public protector staff member whose identity is known to News24 and amaBhungane.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The detailed allegations it sets out undercut Mkhwebane\u2019s campaign to portray herself as the victim of a political plot. Instead, it details how she allegedly took steps to withhold evidence implicating herself from the courts.<span class=\"Apple-converted-space\">&nbsp; &nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The whistleblower\u2019s affidavit was sent National Assembly Speaker Thandi Modise, and to President Cyril Ramaphosa\u2019s office on Friday.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Mkhwebane dismissed the whistleblower\u2019s allegations as \u201cbaseless claims and ramblings of disgruntled current and former employees\u201d.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Some of these employees, she said, were facing disciplinary action.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">\u201cThe intention is clear: to influence the mooted parliamentary process to remove me from office. I will respond substantively in due course.\u201d<\/p>\n\n\n\n<h5 class=\"wp-block-heading p1\">Notes to a conspiracy<\/h5>\n\n\n\n<p class=\"p1 wp-block-paragraph\">According to the whistleblower\u2019s affidavit, the SSA instruction was handed to Mkhwebane and her senior investigator assigned to the CIEX complaint, Tebogo Kekana, at a meeting on June 6, 2017 by SSA official<span class=\"Apple-converted-space\">&nbsp; <\/span>Maiendra \u201cMai\u201d Moodley \u2013 just weeks before the final report was released.<\/p>\n\n\n<div class=\"wp-block-image\">\n<figure class=\"alignleft\"><img decoding=\"async\" src=\"http:\/\/amabhungane.org\/wp-content\/uploads\/2019\/12\/Screenshot-2019-12-14-at-19.37.23.png\" alt=\"\"\/><\/figure>\n<\/div>\n\n\n<p class=\"wp-block-paragraph\"><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">News24 and amaBhungane discovered Moodley\u2019s typed note (right) earlier this year in papers the public protector\u2019s office disclosed during the court review of her CIEX report, but it was not identified as an SSA document, so its significance was unclear until the whistleblower\u2019s account emerged. <span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Moodley was seconded to the SSA from the State Information Technology Agency under then SSA director general Arthur Fraser. The affidavit states that Mkhwebane introduced Moodley as an \u201ceconomist\u201d; however his expertise lies in computer systems.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The June 2017 meeting was the second Mkhwebane held with SSA officials about the CIEX report.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">She met with then state security minister David Mahlobo, Fraser and a senior SSA agent named James Ramabulana on May 3, 2017. Ramabulana was also present at the June 6 meeting.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The whistleblower states that Mkhwebane, contrary to the public protector\u2019s standard practice, instructed her lead investigator, Kekana, not to record or take notes during this meeting.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The whistleblower also alleges that Mkhwebane held a private discussion with Mahlobo prior to the official meeting, which was \u201codd\u201d.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Mahlobo would not comment on the issues raised, while Fraser referred queries to the SSA, which confirmed it would provide comment but had not done so at the time of writing.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Moodley did not respond, while a query for Ramabulana, sent to the SSA, also went unanswered.<\/p>\n\n\n\n<h5 class=\"wp-block-heading p1\">Perjury?<\/h5>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The Constitutional Court earlier this year upheld a personal costs order against Mkhwebane by the Gauteng High Court in Pretoria related to the SARB\u2019s review of her CIEX report.<span class=\"Apple-converted-space\">&nbsp; <\/span>In its majority judgment, the apex court criticised Mkhwebane\u2019s lack of honesty.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">On Thursday, Mkhwebane described the personal costs order as a \u201clow point\u201d of her year during a press briefing, although she said she found solace in the minority judgment penned by Chief Justice Mogoeng Mogoeng, which ascribed her conduct to innocent errors.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">At the heart of the court\u2019s concerns was Mkhwebane\u2019s failure to disclose meetings with the SSA and the presidency in her CIEX report \u2013 and the patchy disclosure and contradictory explanations she subsequently offered in court proceedings.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The differing versions Mkhwebane put forward during litigation resulted in the original CIEX complainant, Paul Hoffman, filing a charge of perjury against the public protector with the police.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The Organisation Undoing Tax Abuse also filed a second, more detailed charge.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">News24 and AmaBhungane understand that Mkhwebane has been asked to provide a warning statement to the Directorate for Priority Crime Investigation, or the Hawks, relating to these complaints.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Now the whistleblower affidavit alleges that Mkhwebane deliberately withheld documents from court \u2013 providing evidence that will strengthen those charges and tend to confirm the Constitutional Court majority judgment that she was dishonest.<\/p>\n\n\n\n<h5 class=\"wp-block-heading p1\">Succession of lawyers<\/h5>\n\n\n\n<p class=\"p1 wp-block-paragraph\">When SARB took Mkhwebane\u2019s CIEX report on judicial review, she was obliged by a court rule, known as Rule 53, to disclose every document and piece of evidence relied on during her investigation.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The Constitutional Court was scathing about her failure in this regard, noting: \u201cThe Public Protector is wrong when she claims that she \u2018filed the entire record\u2019.<span class=\"Apple-converted-space\">&nbsp; <\/span>She did not.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">\u201cShe omitted pertinent documents from the record, some of which were only put up for the first time as annexes to her answering affidavit in the High Court, and others, which were disclosed for the first time in this Court.\u201d<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Now the whistleblower exposes some of the intrigue behind that failure.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The whistleblower alleges Mkhwebane was adamant that she did not wish to have everything included in the record \u2013 at least twice she instructed her investigator, Kekana, to withhold specific documents.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">When Kekana relayed this message to the public protector\u2019s then lawyers, they insisted all relevant documents had to be included and disclosed.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">\u201cAdvocate Mkhwebane vehemently opposed this,\u201d the whisteblower claims, noting that the first set of lawyers were thereafter replaced.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The whistleblower discloses an example, an email to Kekana from Mkhwebane stating that she had &#8220;asked SSA to provide input and economist&#8221;.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">That email was omitted from the Rule 53 record and has never been disclosed until now. The whistleblower claims that Kekana also disclosed to Mkhwebane\u2019s new counsel, Adv McCaps Motimele, the fact that aspects of the recommendations in the report were prepared for the public protector by the SSA itself and not by her.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Motimele, too, was eventually replaced as counsel on the matter.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">When the matter was before court, a different advocate had to be hired at the last minute.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\"><em>Reporting by Kyle Cowan, Sam Sole and Sarah&nbsp;Evans.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Whistleblower reveals the SSA drafted Busisiwe Mkhwebane\u2019s order to nationalise the Reserve Bank.<\/p>\n","protected":false},"author":2,"featured_media":21624,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[2],"tags":[270,271,272,273,274,139,275],"class_list":["post-10348","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-stories","tag-pp","tag-public-protetor","tag-reserve-bank","tag-sarb","tag-spies","tag-ssa","tag-state-security"],"acf":[],"_links":{"self":[{"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/posts\/10348","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/comments?post=10348"}],"version-history":[{"count":2,"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/posts\/10348\/revisions"}],"predecessor-version":[{"id":30281,"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/posts\/10348\/revisions\/30281"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/media\/21624"}],"wp:attachment":[{"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/media?parent=10348"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/categories?post=10348"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/tags?post=10348"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}