Public protector Busisiwe Mkhwebane is becoming ever more tangled in knots over the sources of the information she used in two of her highest-profile investigations — those into President Cyril Ramaphosa and public enterprises minister Pravin Gordhan.
In her probe into donations to Ramaphosa’s CR17 campaign for the ANC presidency, there are questions over where she obtained e-mails giving details of the donors.
The latest intriguing development in the growing litigation around Mkhwebane relates to her report accusing Gordhan of having violated the constitution in regard to the so-called "rogue unit" during his tenure as commissioner of the SA Revenue Service (Sars).
State security minister Ayanda Dlodlo has gone to the high court in Pretoria to lodge an interlocutory application in which she argues that a 2014 report on the unit by the then inspector-general of intelligence (IGI), Faith Radebe, should be removed from the court record because it contains sensitive information.
The IGI report is part of the record of evidence Mkhwebane used to compile her damning findings against Gordhan, who has taken them on legal review.
The IGI investigation, commissioned by former state security minister David Mahlobo, is classified and its legal custodian is the state security minister.
There has always been a cloud over Radebe’s report on the alleged rogue unit. The function of the IGI is to "carry out civilian oversight of the intelligence services", and critics of the report asked why she was investigating Sars, which is not part of the country’s intelligence services.
The problem for Mkhwebane is that Radebe’s report is at the heart of her own ‘rogue unit’ findings
The problem for Mkhwebane — which she acknowledges in court papers responding to Dlodlo — is that Radebe’s report is at the heart of her own "rogue unit" findings against Gordhan.
"If the IGI report is interdicted and expunged from the court record, my report will be stripped of crucial evidence relating to the matters that I cover," the public protector, who is fighting Dlodlo’s application, says in her court papers.
Risk of exposing spies
Dlodlo wants the IGI report struck from the record. Among the reasons she cites is that it may be used by "malicious/opposing/hostile elements" to "disrupt the objectives and functions of an institution and/or state".
She says publicising the report could expose the identities of agents and place them at risk and could expose methods used by the State Security Agency (SSA). The minister also argues that the document does not lose its classified status just because it is already in the public domain.
EFF leader Julius Malema, who has joined court proceedings supporting Mkhwebane in the Gordhan matter, has also opposed Dlodlo’s application, saying the Radebe report is "almost a decade old" and is already in the public domain.
The EFF included the same report in its court papers in a separate equality court fight with Gordhan, who accused the party’s leaders of using hate speech against him.
Mkhwebane says she requested a declassified version of the 2014 report from the minister but did not receive one. She subsequently obtained the report from an "anonymous source". She also says she does not know where the EFF got the report from.
Gordhan, who has filed papers in support of Dlodlo’s application, says that in light of Mkhwebane’s admissions about how she obtained the IGI report, questions must be asked over its authenticity and whether she has verified it.
He says he was never interviewed by Radebe during her 2014 investigation.
The public enterprises minister says in his papers that former Sars commissioner Tom Moyane sought to place the same document before the commission of inquiry into state capture.
However, the chair of the commission, deputy chief justice Raymond Zondo, directed that it could not form part of the record or be published, distributed or disseminated in any way, Gordhan says in his affidavit.
It is clear that the battle over the IGI’s report will play a crucial role in whether Mkhwebane’s findings on the "rogue unit" withstand legal scrutiny.
On the one hand the public protector says she can use any document in her probes, whether classified or not, and on the other hand says she sought on numerous occasions to have the minister declassify it. She also admits that exposing agents and SSA methods could "impair the functioning of government".
The embattled Mkhwebane may have landed herself in yet another inextricable bind.
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