‘Busisiwe had last say on reports’
But her colleague said he didn’t know whether the suspended public protector rewrote findings
Asenior official in the office of the public protector on Wednesday told the parliamentary inquiry investigating Busisiwe Mkhwebane for misconduct and incompetence that she was a hard task master and had the final word on all reports.
Futana Tebele, the senior manager for executive support, told MPS he could not recall seeing the impugned recommendation in the Ciexbankorp report that the mandate of the South African Reserve Bank be amended, or remember discussions where staff were instructed not to rely on information in the Gupta leaks emails in their investigation into the Estina dairy farm scandal.
In reply to a question from Economic Freedom Fighters MP Omphile Maotwe, Tebele said he was not sure whether Mkhwebane would rewrite a report but she had the final say on what investigators submitted to her and could certainly send it back if she was unhappy.
“It does not mean that that report can be issued as it is. The public protector has to satisfy herself that the report is in terms of the standard that ‘I would want to issue it’ and once that it reached then she will issue the report,” he said.
“And I am sure if that report is not satisfactory to her, it will be communicated back. But whether it is difficult to change it or not to change it, I really wouldn’t want to comment on that aspect.”
Tebele said his role on the Bankorp report was merely an “editorial” one, while on the Estina investigation his sole contribution was in helping to establish whether there had been a public-private partnership in the Free State agriculture project that will, according to the National Prosecuting Authority, see fraud charges brought against brothers Atul and Rajesh Gupta.
MPS and evidence leaders repeatedly returned to the question of whether Mkhwebane would unilaterally change a report.
This is critical because witnesses have previously told the committee that the recommendation on the Reserve Bank was inserted in the report after meetings with State Security Agency officials, including former director general Arthur Fraser, and that Mkhwebane vetoed findings against politicians in the Estina report.
Both reports were set aside by the courts in damning rulings that now form part of the basis for the parliamentary misconduct probe against Mkhwebane that may culminate in her impeachment.
The inquiry started in mid-july and has honed in on the climate of suspicion and fear that allegedly ensued after she took office in 2016.
Tebele, who said he had been friends with Mkhwebane since they were students, conceded that she was strict and may have raised her voice at staff but said “being loud” may be a matter of style and not necessarily a sign of intimidation.
He said if he believed a finding submitted by an investigator was not correct, he would not take the matter to Mkhwebane but would raise it with the investigator.
Asked whether he would do so because he believed a recommendation was unlawful or unconstitutional, he said he had never received such. He also stressed that he never reviewed the contents of the reports that were submitted to him for editing. “I have never come across an unlawful recommendation.”
He said the Ciex-bankorp report crossed his desk at a very late stage, hence his role was nothing more than to see “that the typos were correct”.
ANC MP Bekizwe Nkosi quipped that the report indeed contained “a very big typo” — a reference to Mkhwebane’s office attempting years ago to deflect criticism of her extraordinary directive on the Reserve Bank by saying there was no error in law but simply a typing error.
Dali Mpofu, Mkhwebane’s legal counsel, complained that Nkosi was being sarcastic.
Tebele suggested that if Mkhwebane’s reports were more often
criticised than those of her predecessor, Thuli Madonsela, it
may be because the output of the office also increased under her leadership.
It was put to him by Democratic Alliance MP Kevin Mileham that the quality of the output had declined but Tebele demurred that he could not comment because he had been shown no statistics that would support this statement.
“I agree with what the courts have said but I am unable to say to you there is a decline in the quality of reports. What about the reports that are still in good standing?”
He then suggested that Mkhwebane’s reports were more frequently challenged in court than those produced under Madonsela because there was an appreciation, after the constitutional court’s Nkandla ruling in 2016, that the public protector’s reports were legally binding.
Tebele was plainly taken aback after being shown a phone text message Mkhwebane sent to a colleague suggesting he may not be trusted. But he staunchly resisted being drawn into any controversy, noting that he was a reluctant witness in a process spurred by a motion filed by a political party.
“I would not want to enter into the political space, because it might not be my space. I have given my view and I am sure it will differ from other people’s views.”