Contradictions stack up against protector
• Affidavits before different courts reveal inconsistencies that may add to protector’s difficulties with MP probe
Public protector Busisiwe Mkhwebane, who is facing a potential inquiry into her fitness to hold office, has repeatedly said she is a truly independent watchdog who does not deserve the multiple findings of perceived bias against her.
Public protector Busisiwe Mkhwebane, who is facing a potential inquiry into her fitness to hold office, has repeatedly said she is a truly independent watchdog who does not deserve the multiple findings of perceived bias against her.
But two of Mkhwebane’s most high-profile legal battles, aimed at overturning the scathing judgments delivered about her invalidated probes into the Estina dairy project “scam” and President Cyril Ramaphosa’s CR17 election campaign funding, have again raised serious questions about the apparent inconsistency in her approach to politically loaded investigations.
That is because, in separate sworn affidavits before the Constitutional Court and Supreme Court of Appeal, Mkhwebane appears to significantly contradict herself in her efforts to explain her intense enthusiasm for investigating Ramaphosa’s campaign donors and her almost complete failure to properly investigate the Gupta-linked Estina scandal. It has been two years since the Estina probe was reopened but there has been little progress.
In the Ramaphosa matter, Mkhwebane seeks to justify an investigation into private campaign funding that the Pretoria high court has found should not have been conducted in the first place. In the Estina case, she tries to justify failing to properly investigate the alleged looting of state funds intended to benefit poor and vulnerable black farmers — the people, according to Pretoria high court judge Ronel Tolmay, that Mkhwebane’s office was meant to protect.
Arguably one of the most noteworthy differences in these investigations is the officials they do, and do not, focus on.
In the Estina investigation, Mkhwebane came under fire for doing almost nothing to investigate the alleged involvement of then Free State premier and ANC secretary-general Ace Magashule, or then Free State agriculture MEC Mosebenzi Zwane, in irregularities and possible fraud linked to the Estina project. Magashule’s son was employed by the Guptas, while Zwane repeatedly and visibly championed the family’s business interests while serving as minister of mineral resources in former president Jacob Zuma’s cabinet. Both men are firm Zuma allies.
The Estina project, signed off in 2012, was promoted by the Free State government as a mechanism to empower smallscale dairy farmers through the production and sale of milk. However, of the R220m in taxpayers’ money transferred to Estina — a Gupta-linked company contracted by the Free State’s agricultural department to run the project — only 1% was reportedly spent on actual farming. Instead of uplifting poor black farmers, most of the balance of this money allegedly went to individuals and entities associated with the Guptas.
Part of it was reportedly used to fund a lavish Gupta wedding at Sun City.
Mkhwebane said “resource constraints” prevented her from conducting a full-throttled investigation into the Estina scam — which would have included the subpoenaing and analysis of phone records and bank statements of important officials, including Zwane and Magashule.
By contrast, however, she approached the Financial Intelligence Centre (FIC) to provide her with information and analysis about Ramaphosa’s CR17 campaign accounts, which she then used to find that these same accounts may have been implicated in money-laundering.
It is important to note that Mkhwebane has been forced to conduct a second phase of her Estina investigation by parliament’s portfolio committee on justice & correctional services, which insisted she investigate the role of politicians in the saga, as well as the plight of the farmers who were meant to benefit from the project.
In Mkhwebane’s first investigation, she failed to speak to a single one of these intended beneficiaries — a failure she said was caused by her inability to verify that a list containing their names was accurate.
Her spokesperson, Oupa Segalwe, told Business Day Mkhwebane was issuing “section 7(9) notices” to those people implicated in this second investigation so they could respond to the evidence against them.
It remains unclear, at this point, whether Mkhwebane approached the FIC for analysis of bank accounts linked to the Estina scam, as she did in her CR17 investigation.
In that investigation, Mkhwebane ordered the National Prosecuting Authority (NPA) to investigate what she described as “prima facie” evidence of money-laundering she had uncovered and report back to her — a directive the Pretoria high court found was unlawful.
It is noteworthy that Mkhwebane has told the appeal court that she removed former public protector Thuli Madonsela’s directive for the Special Investigating Unit (SIU) and auditorgeneral to probe confirmed irregularities in the Estina deal — which would have allowed the SIU to take civil action to recover looted state funds — because “I considered that I did not have the power to instruct or direct either of them to conduct an investigation on my behalf and under my monitoring”.
By contrast, she has told the Constitutional Court that her instruction that the NPA investigate money-laundering “does not take away from the autonomy of the national director of public prosecutions (NDPP) to decide whether particular criminal conduct should be prosecuted. The remedial action merely refers the matter to the NDPP to conduct further investigation,” she says.
The Pretoria high court ultimately found that there was no factual or legal basis for Mkhwebane to make such a finding of suspected money-laundering in the first place, because, among other reasons, there was no evidence that the CR17 campaign accounts were being used to “clean” cash generated as the proceeds of crime.
In papers filed at the Constitutional Court, Mkhwebane, however, argues: “If one looks at the totality of evidence and the large sums of money that passed through the (CR17) account, it would have been remiss in the extreme for me to turn a blind eye to this simply because the subject is the president.”
But, in defence of why she failed to probe alleged fraud, theft and money-laundering in the Estina deal, Mkhwebane has told the appeal court that the Hawks were “the appropriate statutory body to investigate these allegations”.
What the courts make of these radically different arguments will be pivotal in determining how parliament proceeds with any potential inquiry into Mkhwebane’s fitness to hold office. Should she fail to adequately explain these contradictions, they will add further fuel to the fire that she most needs to put out: accusations that her office, far from being neutral in its investigations, has become a weapon in ANC factional battles. And changes its own rules, depending on who it is targeting.