Public Protector disappointed by the leak of investigation document and the related commentary

The Public Protector, Adv. Busisiwe Mkhwebane, has noted with disappointment the leaking of a subpoena within hours of it being served on the Minister of Public Enterprises, Mr. Pravin Gordhan, and the related commentary attributed to both Minister Gordhan’s attorney and spokesperson.

The subpoena relates to Adv. Mkhwebane’s investigation into allegations of improper conduct and a violation of the Executive Ethics Code, irregular and unlawful activities by the Minister.

Among other things, the comments concerned have sought to reduce Adv. Mkhwebane’s legitimate investigation of complaints received to a harassment of Minister Gordhan. Remarks attributed to his office have labelled the investigation “a fightback campaign to disrupt efforts to uncover and prosecute malfeasance and corruption in various entities of government.”

This comes on the back of similarly baseless comments in the public domain that Adv. Mkhwebane’s investigations concerning allegations levelled against Minister Gordhan are part of factional battles involving a political party.

Adv. Mkhwebane has, in the past, subpoenaed and interviewed numerous Ministers, Members of Executive Councils and Premiers as part of investigations. Not once did any of these public office-bearers take issue with this, label it “harassment” or see it as a source of irritation.

They cooperated, with the understanding that the Public Protector has the power and authority conferred by the Constitution and the law to hold them to account. Adv. Mkhwebane therefore expects no less from any other public office-bearer and official whose alleged conduct has been brought to her office for scrutiny.

She wishes to point out that an investigation is essentially a fact-finding mission that can go either way. In the event the evidence before her points to wrongdoing, she will make adverse findings. Should the evidence point to the opposite, she will exonerate those alleged to have acted improperly. It is therefore in the interest of all those whose conduct is under investigation to cooperate with her processes so as to clear their names.

Regarding the fact that the National Prosecuting Authority (NPA) abandoned criminal charges against Minister Gordhan on similar issues as those before the Public Protector, Adv. Mkhwebane wishes to reiterate the point that her investigation focuses on maladministration while the NPA pursued the criminal aspects of the case.

Another false statement that has been bandied about is that the “rogue unit” matter was previously dealt with by the former Public Protector and that she found no wrongdoing.

The truth is that a former South African Revenue Service employee approached the Public Protector in 2012, alleging that the appointment of investigators to a “National Research Group (NRG)” at the institution was irregular as there were no employment contracts concluded between the investigators and SARS and neither were the appointments made in compliance with SARS recruitment processes.

The former employee, who said he was part of the NRG, added that the investigators were home-based and not operating from SARS business premises.

The complainant further explained that the NRG was a “surreptitious investigative branch ostensibly to carry out clandestine specialized investigations against unsuspecting civilians, politicians and prominent businessmen for tax evasion”.

He, at the time, furnished the Public Protector with 19 names of alleged NRG investigators and 13 names of the civilians, politicians and prominent businessmen, who were allegedly under surveillance from the NRG.

That investigation, which was closed on 11 October 2017, and not by the former Public Protector as alleged, on the grounds that it was being dealt with by the Inspector General of Intelligence, was part of a backlog of cases that were being addressed.

The focus of that matter is not to be confused with the current investigation, which deals with allegations that Minister Gordhan established the “rogue unit” during his tenure as SARS Commissioner in violation of South African Intelligence prescripts including sections 209 and 41 (1)(e) of the Constitution.

Adv. Mkhwebane wishes to reiterate her position that she will not conduct her investigation in the glare of the public so as to avoid jeopardizing it. However, she has had to issue this statement in a bid to protect the integrity of the investigation.

She is also concerned that the subpoena was leaked without due regard for details of investigation staff in her office, including names and contact numbers as this compromises them and makes their jobs difficult. Media houses are therefore implored to refrain from publishing such details and the contents of leaked investigation documents in general.

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