By Lehlohonolo Lehana.
Public Protector’s counsel, advocate Dali Mpofu, SC, says they will call former SARS executive Johann van Loggerenberg back to testify.
Tebogo Kekana, who is testifying today, has been subpoenaed to give evidence at the Public Protector Inquiry.
He was a former senior investigator at the Public Protector’s office and was a senior investigator in the CIEX inquiry.
There were multiple legal challenges to the CIEX report – all of which were successful.
The first judgment delivered against the ruling by Judge John Murphy, who set aside Mkhwebane’s remedial action, ordering that the constitutional mandate of the Reserve Bank be changed.
There were subsequent attacks on the report in its entirety, bought by ABSA and the Reserve Bank.
In this litigation, Mkhwebane was ordered to personally pay part of the legal costs because of her apparent dishonesty and bias.
Kekana’s testimony was based on an affidavit he deposed under the Protected Disclosures Act in 2019.
While the Public Protector was investigating the SARB, he was present at a meeting between Mkhwebane, then-State Security Agency (SSA) director-general Arthur Fraser, SSA representative James Ramabulana and then-state security minister David Mahlobo. This meeting took place on 3 May 2017.
On the day of the meeting, I was informed that advocate Mkhwebane was having a discussion with Minister Mahlobo prior to the meeting. I was not party to this discussion. I found it odd that advocate Mkhwebane would hold a discussion by herself with one of the attendees of an interview, without anyone else present,” read the affidavit.
“The formal meeting then began. When the meeting with the SSA began, I took out my notepad in order to take notes of the meeting and took out my recording device in order to record the meeting [as I usually do].
“Advocate Mkhwebane, however, instructed me not to record the meeting. She also instructed me not to take notes during the meeting. I was extremely surprised by both these instructions.”
Kekana said he typically recorded meetings or took notes. Mkhwebane did not provide a reason on why he should not take notes.
When he was drafting the report on the SARB matter, Mkhwebane told him to find a way to include a recommendation the Constitution should be amended to nationalise the SARB.
Kekana did not include it in the report, because he did not believe it was relevant to the investigation. Mkhwebane never informed him of “what purpose or motive such a recommendation would serve”, he said.
On 4 May 2017, Mkhwebane provided him with her comments on the draft report in an email.
Mkhwebane’s comments were typed in capital letters in the email.
“As can be seen from this email, Advocate Mkhwebane instructs me to ‘AMEND THE CONSTITUTION TO CATER FOR STATE BANK PER GOODSON PROPOSAL’.
Goodson is economist Stephen Goodson whom Mkhwebane met after a provisional report was leaked. He was a proponent of nationalising the SARB. She also instructed Kekana to read Goodson’s book on the topic.
Mkhwebane then informed him the SSA would draft a recommendation to nationalise the SARB.
Kekana added he prepared several versions of the draft final report, none of which included a recommendation the SARB should be nationalised, a recommendation he found “bizarre”.
Upon Mkhwebane’s instruction, he included it in the report, which was published on 19 June 2017.
“Accordingly, the remedial action contained in the final CIEX investigation report did not come from the Office of the Public Protector, but rather from the SSA.”
In November 2017, Kekana was called in by a senior HR manager and told Mkhwebane did not want him working in her office because he spoke too much to the lawyers.
Furthermore, Mkhwebane also instructed them- through his supervisor – there should be no findings against politicians in the Vrede Dairy Farm report.
“We were accordingly forced to remove any adverse findings contained in the report against any politician, including Ace Magashule, the premier of the Free State at the relevant time, and Mosebenzi Zwane, who was the MEC for the Free State Department of Agriculture at the time,” read Kekana’s affidavit.
“She said she didn’t care if the report was reviewed or not,” Kekana said.
His laptop was later confiscated, when he got it back, his email correspondence with Mkhwebane was gone.
Kekana was later suspended and fired. The case is in the Labour Court.
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Video Courtesy of Parliament.