By Marianne Thamm

In 2011, the Supreme Court of Appeal established a crucial legal principle in a matter relating to the theft of about R11m in public funds by PetroSA, via the late Sandi Majali’s Imvume Management, which went straight into the ANC’s 2004 election coffers (remember that one?). The principle is that the Public Protector is not restricted to investigating only what is placed before him or her, but to investigate “any information that comes to his or her knowledge, however that may occur.”

For example, the Zondo Commission, established on the recommendation of former Public Protector Thuli Madonsela, has for several gruelling months heard evidence of alleged industrial-scale corruption implicating former president Jacob Zuma as well as several of his Cabinet ministers and many other public officials. And that’s before even considering the tectonic shift that is the #GuptaLeaks.

More pressing matters a country cannot have.

The United States is yet to catch up with President Trump, but here we are in South Africa, with all the beans spilt, and not just by the media, but from the mouths of those involved.

Who can forget former chief operations officer of Bosasa, Angelo Agrizzi’s putrid and jaw-dropping account of how the company had paid millions in bribes (R6m a month) to various connected individuals, including two ministers, for their co-operation in swinging humungous and numerous tenders in Bosasa’s direction?

The images of Gavin Watson in the Bosasa safe, treating piles of wrapped bank notes like crates of beer in a storeroom, are indelibly etched on the mind’s eye of the nation.

On a screen near you, happening right now, are any number of commissions of inquiry which have highlighted criminal behaviour on steroids on the part of those employed by the state to serve the public, and the scandals that are known to the public, but are yet to be scrutinised beyond what the media has uncovered.

Here are some, in no particular order:

• #GuptaLeaks
• VBS
• SAPS corruption
• Free State
• Life Esidimeni
• Matters arising from PIC inquiry
• Matters arising from Nugent commission
• Bosasa
• PIC
• Other matters arising from Zondo commission
• The Mokgoro Inquiry
• Eskom
• Prasa
• Denel
• SAA
• SABC
• Arms deal
• The role private entities played in the capture of the state.

… and, literally, hundreds more.

In December 2018, the Nugent Commission of Inquiry into Tax Administration and Governance submitted its final report to President Cyril Ramaphosa. It recommended criminal prosecutions and the setting aside of suspect contracts, including former commissioner Tom Moyane’s awarding to Bain & Co the disastrous SARS “restructuring” contract which led to the near-collapse of the country’s revenue service.

Then there is the High-Level Panel Review into State Security’s horrifying findings that the country’s intelligence services had been repurposed, unaccountably, to serve the interests of Jacob Zuma and his allies.

Surely these are all massive issues, worthy of Mkhwebane’s attention?

The Public Protector has not been idle, mind you.

Her office has also been quietly investigating the Independent Police Investigative Directorate (Ipid) as well as its former executive director, Robert McBride.

Ipid is at the centre of investigating allegations of wide-scale fraud and corruption in the SAPS and the State Information Technology Agency and how the SAPS, in particular, has over years been captured by criminal elements with whom it has done business.

This has cost the public purse billions as a layer of senior officers fed off corrupt tenders. It has also siphoned off much-needed funds from the policing budget.

At least 20 of the top SAPS brass have been implicated in fraud allegations totalling billions. Why the Public Protector would target specifically the investigators into this matter of crucial importance to national security at this point, is baffling.

Ipid is also investigating the attempted irregular procurement of a grabber at the inflated price of R45m before the ANC’s Nasrec conference in order to allegedly launder cash to buy votes. This is explosive stuff if proven in a court of law.

The Public Protector’s office is currently in communication with Ipid acting director Victor Senna, with regard to the employment of Ipid staff, one of whom is investigating SAPS corruption.

Ipid, Daily Maverick has reliably learnt, has not approved legal representation for the employees Mkhwebane’s office seeks to interview.

With all of this in the public realm, on every TV station, every online publication, every newspaper and every radio station and with the law on her side, the Public Protector has chosen rather to revisit two matters that have been in the public realm for more than 10 years and which have been settled, in public, by the NPA. Shaun Abrahams nogal.

So, let’s just bat it out of the yard once and for all. (That’s assuming one has a functional cranial hamster on the wheel.)

The facts will no doubt fail to persuade Mkhwebane’s praise singers in liminal South Africa over on Twitter and who saluted her decision to come for Pravin Gordhan, yet again – the public protector’s announcement serendipitously coinciding with Ramaphosa’s imminent announcement of his Cabinet, in which Gordhan is expected to serve.

This happened in the same week that the high court found that Mkhwebane had failed the Estina beneficiaries, badly. Nary a Tweet or an admonition for this from the forces of radical economic transformation.

Freedom Under Law expressed “dismay” in a statement on Mkhwebane’s findings on Gordhan.

“This attempt to reheat a long cold dish and serve it up to the public as evidence of wrongdoing is on its own alarming. But that the Public Protector releases her report a mere two days after receiving responses from the implicated parties – failing to meaningfully engage the responses – makes a mockery of the most basic tenets of justice,” said Freedom Under Law’s Nicole Fritz.

So, as they say in the movies sometimes, let’s go back to those old charges (take 27):

On 30 October 2016 Shaun Abrahams, then head of the NPA, and after months of hounding by the DPCI (Hawks), peaking then under the leadership of the irregularly appointed old apartheid-era cop, Berning Ntlemeza, dropped fraud charges against Gordhan, Ivan Pillay and former SARS commissioner Oupa Magashula. The charges related to the early retirement of Pillay.

The reason for Abrahams’ decision was that a vital piece of exculpatory evidence, now known as the Symington memorandum, through either incompetence or design, had not found its way into the investigation docket given – by Berning “Sherlock” Ntlemeza and various other controversial law enforcement officials – to the NPA in order to press charges against Gordhan. At any cost.

More keystone of Keystone cops you cannot get. But there we have it.

If it had, the memorandum would have shown that in 2009, Vlok Symington, SARS deputy director of law, had given an opinion that Pillay’s request for early retirement was lawful and procedural. Many have retired early from public service. Many have been re-employed afterwards on contract.

On 18 October 2016, a few days before Abrahams’ withdrawal of the charges, a bizarre “hostage situation” occurred in the boardroom at SARS headquarters in Pretoria.

It points to the desperation of those seeking to remove anti-corruption obstacles.

There, then commissioner Moyane’s bodyguard, Thabo Titi, Crimes Against the State head Nyameka Xaba as well as DPCI officials, had attempted to retrieve a very important email they had accidentally included in a bunch of papers they had given Symington to sign.

The email in question was from attorney David Maphakela, of the SARS’ legal firm Mashiane, Moodley and Monama, stating that he wanted nothing to do with a request by Xaba that Symington provides an affidavit “about the circumstances under which he had provided the 2009 memo”. Maphakela said he could not morally be part of the shenanigans.

Mkhwebane says she has revisited two matters involving Gordhan, Pillay and Magashula. The old rogue unit sledgehammer, and the Pillay retirement saga. Mkhwebane cited “special circumstances” for her decision to revive the cases.

One is tempted to say Ntlemeza might count as one of those special circumstances, but other than that, there is no rational reason or reason in law to reopen the case. Gordhan, Pillay and Magashula are challenging her findings on an urgent basis.

Gordhan’s legal representative, Tebogo Malatji, said in a media statement that “in light of the most recent judgment in relation to the Vrede Dairy Project, Minister Gordhan is of the view that the Public Protector has once again erred in her findings and proposed remedial action. We are instructed to institute review proceedings immediately”.

Malatji added that Gordhan also took issue “with both the haste and the timing of the release of her report. The complaint involves complex considerations of pension fund laws in as far they relate to public servants. It is doubtful whether due consideration was given to Minister Gordhan’s submissions.”

Pillay, in his response, said that the Mkhwebane had failed to demonstrate the existence of any “special circumstances” which would permit “her to exercise her discretion to entertain a complaint about matters which occurred more than two years prior to being reported to her.”

Magashula, in his response, said that “the Minster (Gordhan) meticulously followed the unanimous advice of all role players who were ad idem that he was authorised to approve the early retirement of Mr Pillay and re-appoint him at SARS”.

The courts have put Mkhwebane through the wringer thrice on high-profile recommendations.

A fourth slap-down will no doubt call for her impeachment.

Meanwhile, Daily Maverick has reliably learnt that the “anonymous” complaint lodged with the Public Protector about the Pillay pension payout is a member of SARS who himself worked closely with disgraced former commissioner Moyane.

The EFF’s Floyd Shivambu is the second new complainant. There is no doubt that the 2014 Office of the Inspector-General of Intelligence classified investigation into State Security Agency operations at SARS and done by former Inspector-General of Intelligence, Faith Radebe, landed up in Mkhwebane’s hands through Shivambu.

While Minister of State Security Dipuo Letsatsi-Duba has criminally charged Mkhwebane for being in possession of the Office of the Inspector-General of Intelligence report, Shivambu, who had originally attached it to papers in submission to Equality Court hearing, has been let off the hook.

It was Zuma ally, former Minister of State Security David Mahlobo, who had asked Radebe to investigate SSA employees after State Security agents Belinda Walter and Mandisa Mokwena were exposed in public. The report instead appeared to spark the “rogue unit” accusation. Point is, the Office of the Inspector-General of Intelligence has no supervisory mandate over SARS.

Meanwhile, all around us, are commissions. All around us evidence heaps up. A revitalised NPA is preparing to finally issue summonses.

This is a formal invitation to the Public Protector to pick up at least one of the many cases that have been presented to the Zondo Commission, or others that we helpfully listed. Particularly those where ordinary South Africans have been short-changed and abused by those elected to serve and those employed to carry out the laws of the country as part of their duties.

Back in 2011, the SCA reaffirmed that “the (Public Protector) Act makes it clear that while the functions of the Public Protector include those that are ordinarily associated with an ombudsman, they also go much beyond that.

“The Public Protector is not a passive adjudicator between citizens and the state, relying upon evidence that is placed before him or her before acting. His or her mandate is an investigatory one, requiring pro-action in appropriate circumstances. Although the Public Protector may act upon complaints that are made, he or she may also take the initiative to commence an enquiry, and on no more than ‘information that has come to his or her knowledge’ of maladministration, malfeasance or impropriety in public life.”

Where have you gone, Mrs Mkhwebane? Our nation turns its lonely eyes to you. DM