State Capture 2.0: SSA agent confirms key details of whistleblower's Public Protector, Reserve Bank affidavit

2019-12-17 06:32
Public Protector Busisiwe Mkhwebane.

Public Protector Busisiwe Mkhwebane. (City Press)

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A senior State Security Agency (SSA) official has confirmed pivotal details of a whistleblower's account over the conduct of Public Protector Busisiwe Mkhwebane during two investigations by her office, first reported by News24 and amaBhungane on Sunday.

James Ramabulana, a long-serving senior SSA official, confirmed that he was present at both SSA meetings with Mkhwebane surrounding her so-called CIEX investigation into ABSA Bank and the South African Reserve Bank.

The whistleblower claimed in an affidavit that another SSA official, Maiendra "Mai" Moodley, had handed Mkhwebane a typed note containing the wording for a remedial action included in her final CIEX report – raising questions over the SSA's involvement in a clandestine effort to shift the mandate and oversight of the central bank under the cloak of a Public Protector report.

Ramabulana in a written response to questions was mum on this aspect, although he was in the room when the note was handed over during the second meeting with Mkhwebane.

However, he supported other key elements of the whistleblower's version including partial confirmation that Moodley was introduced as an "economist" – although his expertise is in information technology security.

Mystery meetings

Ramabulana is a long serving intelligence official. He is understood to have occupied positions within the domestic intelligence sphere for nearly two decades.

He said Mkhwebane had formally requested, in writing, a meeting with the state security minister and the director general, at the time David Mahlobo and Arthur Fraser.

"They [Mahlobo and Fraser] decided to go with me to the meeting because I was familiar with matters that were to form part of the discussions. The two of them had not dealt with the matters in question," Ramabulana said.

The Public Protector's CIEX report centred around a complaint by Paul Hofmann of Accountability Now, who asked in 2010 for an investigation into whether government had failed to act on a report by British investigations firm CIEX over the SARB's apartheid era bailout of Bankorp, a bank that was later bought by ABSA.

The agreement with CIEX had been signed by the former South African Secret Service boss Billy Masethla. It is understood that Masethla was interviewed by Mkhwebane's predecessor, Thuli Madonsela, but the transcription and audio recording for that interview went missing, necessitating Mkhwebane's team to seek a new response from the SSA.

In the final report, no mention is made of any written submission from the SSA, and neither is there a reference to any interview with SSA officials.

The whistleblower revealed that Mkhwebane instructed her senior investigator who was present at both meetings, Tebogo Kekana, not to record or take notes, which the whistleblower found "odd".

The two meetings with the SSA only came to light during litigation over the report, when two handwritten and cryptic notes by the investigator, Kekana, were found in the records.

ALSO READ: State Capture 2.0 Part 1 - How the State Security Agency 'instructed' Busisiwe Mkhwebane to make Reserve Bank, Absa findings

The whistleblower alleged that Mkhwebane instructed two successive teams of lawyers to withhold relevant documents from the courts.

The whistleblower disclosed an example, an email to Kekana from Mkhwebane stating that she had "asked SSA to provide input and [an] economist".

That email was omitted from the court record and has never been disclosed until now.

And Mkhwebane never disclosed, in years of litigation, who attended the meetings on behalf of the SSA, or what was discussed.

Now the whistleblower and Ramabulana have confirmed details of those meetings.

Technical support

During the meeting of May 3, 2017, Ramabulana told News24 that Mkhwebane requested more information on CIEX, and further "used the opportunity to request technical support" from the SSA.

Ramabulana said he had earlier compiled an assessment on the CIEX contract with SASS, and was therefore well placed to assist the Public Protector.

"It was within the context of her request [for technical support] that a meeting of the 6 June 2017 took place. I indeed attended the meeting of 6 June 2017 as part of a follow-up to the earlier meeting. I was with Mr Moodley," Ramabulana said.

"I cannot answer why I did not correct the PP when she introduced Mr Moodley as an economist as I expected him (Moodley) to do so. In fact, I can't even remember what she said. At the time, he was the adviser to the DG [Fraser] on technical matters and had for that matter worked in the economic sector before," he continued.

"He had worked in the banking sector, the Reserve Bank to be specific. But that does not mean that on the day in question, he, in my presence, wrote the report. I understood his role as that providing the requested technical support (Case Management System)."

This appears to be a reference to the Public Protector's efforts to launch an electronic case tracking system with the SSA's help, but it is not clear why this would have been relevant to a meeting concerned with the CIEX report.

Almost as an afterthought, Ramabulana said it was, "anyhow the mandate and/or legislated role of the SSA to advise any government department, State-Owned Enterprise and Public Institution, the PP included, on any matter pertaining to national security".

He added: "It must be noted that national security encompasses/includes political, economic, social, environmental, scientific and technological issues. It must also be noted that the SSA can only advise and or recommend to its clients - decisions are the sole function of its client (national, provincial, local government departments and SOEs, including Public Institutions)."

Ramabulana said, according to his knowledge, the SSA never ran a project to nationalise the Reserve Bank.

ALSO READ: State Capture 2.0 Part 2 - Busisiwe Mkhwebane ordered senior investigator 'to remove information' on Ace, Zwane in Estina report

Mkhwebane's June 2017 report called for the Constitution to be amended to remove the SARB's mandate to protect the value of the currency and instead set as its primary object "to promote balanced and sustainable economic growth in the Republic, while ensuring that the socio-economic well-being of the citizens are protected".

This was the exact wording contained in the note allegedly handed over by Moodley.

Her report was billed by a senior SARB official as a "brazen attack" on the independence of the central bank, and received swift backlash and condemnation.

She was roundly criticised in successive court judgments that set aside the report, and ordered to pay some of the legal costs out of her own pocket over her lack of candour and transparency.

The Constitutional Court found she had acted "in bad faith and in a grossly unreasonable manner".

Mkhwebane has dismissed the whistleblower's allegations as "baseless claims and ramblings of disgruntled current and former employees".

Some of these employees, she said, were facing disciplinary action.

"The intention is clear: to influence the mooted parliamentary process to remove me from office. I will respond substantively in due course."

SSA links

Mkhwebane worked for the SSA for three months before taking up the position of Public Protector in October 2016.

Her stint at the SSA, as an "analyst", coincided with Parliament's interview process to find a new public protector.

But her links to key intelligence figures goes back further.

News24 has established that Mkhwebane worked with Fraser at the department of home affairs in 2005.

Mkhwebane left her previous position at the office of the Public Protector in 2005 to become the director for refugee affairs, a senior post in the National Immigration Service of home affairs.

At the time Fraser was seconded from the then National Intelligence Agency to home affairs, and served as the deputy director general for the immigration service – a position that resulted in Mkhwebane, effectively, reporting to him.

Last month Fraser, who was removed as SSA boss and transferred to become national commissioner of prisons, declined to comment on his history and relationship with Mkhwebane, referring queries to home affairs and the SSA.

From 2010 to 2014 she served as counselor for immigration and civic services at the South African embassy in the People’s Republic of China, though her ambassador at the time, Bheki Langa, denied that she ever worked for the SSA under diplomatic cover.

Another senior home affairs official denied any knowledge of Mkhwebane being linked to the SSA during her time in China when approached by News24 earlier this year.

Langa returned to South Africa in December 2014 and served as the head of the domestic branch of the SSA from August 2015 to March 2017.

When Mkhwebane was last month asked to clarify issues surrounding her and Fraser working together at home affairs, and whether the relationship continued, Mkhwebane said the issues raised about Fraser were the same as what was raised by the DA in a lawsuit.

Mkhwebane sued the DA after its MP Glynnis Breytenbach, who was one of the MP's who interviewed potential public protector candidates, called her a spy.

She would not be drawn into responding however, saying the matter was before the courts and the burden of proof lay with the DA.

Mkhwebane stayed with home affairs until the end of May 2016, when she abruptly resigned and took up the position of analyst at the SSA. She started on June 1, 2016.

Fraser was appointed director general of the SSA in September 2016, just weeks after Mkhwebane’s nomination as public protector was confirmed.

Questions over her links to the SSA were raised during the nomination process in Parliament, but at the time were dismissed over a lack of evidence.

Within months of Mkhwebane taking office, the SSA was allowed unprecedented access to the office – working on internal systems which the office used to manage cases, as well as providing "training" to investigators. The SSA chief financial officer was also seconded to the Public Protector's office.

Mkhwebane told Parliament during her interview that taking up the position at the SSA was to defend the Constitution in a different manner.

CIEX was the first major investigation Mkhwebane was involved in during her tenure as Public Protector.

Reporting by Kyle Cowan, Sam Sole and Sarah Evans

an amaBhungane investigation

The amaBhungane Centre for Investigative Journalism, an independent non-profit, co-produced this story. Like  it?  Be  an  amaB  Supporterto  help us do more. Sign up for our newsletter to get more.

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Read more on:    public protector  |  ssa  |  busisiwe mkhwebane  |  judiciary  |  politics
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