How Busisiwe Mkhwebane saved Ace Magashule

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Busisiwe Mkhwebane
Busisiwe Mkhwebane

Public Protector Busisiwe Mkhwebane is accused of deliberately changing her report on the Vrede Dairy scandal to shield Ace Magashule and Mosebenzi Zwane from investigation for their alleged role in the Gupta family’s looting of R250 million from the Free State agriculture department.

In an affidavit filed at the Pretoria High Court this week, Lawson Naidoo, the executive secretary of the Council for the Advancement of the SA Constitution (Casac), charges that Mkhwebane made significant changes to the findings and recommendations contained in the provisional report of her predecessor, Thuli Madonsela, watering them down considerably.

The case relates to the failed dairy project in Vrede, allegedly looted by the Gupta family and their companies, including Atul Gupta. He allegedly personally received R10 million from it.

In February, provincial agriculture officials including former department head Peter Thabethe, his then-chief financial officer Seipati Dlamini and official Takisi Masiteng appeared in the Bloemfontein Commercial Crimes Court on corruption charges in connection with the case, alongside Gupta family lieutenants Nazeem Howa, Ronica Ragavan and Ashu Chawla.

Now Casac is accusing Mkhwebane of using her report to protect the officials, Magashule, Zwane and the Guptas, charging that she:
. Ignored the contents of a report regarding the involvement and “clear corruption” of the Gupta family;
. Misled Parliament by saying that the report was already signed off when she was appointed and that she did very little to it;
. Failed to investigate complaints laid in 2013, 2014 and 2016 which include direct allegations against the office of Premier Ace Magashule, whose involvement in the dairy scandal has not yet come to light;
. Removed the remedial action prescribed in Madonsela’s report, to refer the matter to Treasury and the Special Investigating Unit (SIU) and Auditor-General (AG) for further investigation. Naidoo states that instead, she placed Magashule in charge of disciplining “implicated officials”;
. Removed Thabethe’s name in her report and then recommended that he be tasked with training procurement officials as part of her remedial action. Thabethe was the one who allegedly facilitated the corrupt scheme on behalf of Gupta company Estina; and
. Deliberately prevented further investigation of fraud and corruption within the Free State agriculture department.

The allegations against Mkhwebane come as she is increasingly under fire, after publicly admitting last week to hiring intelligence agents in the office of the Public Protector.

Her spokesperson Oupa Segalwe denied that Mkhwebane’s report was sanitised, saying Madonsela’s provisional report also did not implicate politicians. “Also, the Public Protector had no obligation to issue any provisional report she found,” he said.

Free State premier’s office spokesperson Tiisetso Makhele and Free State government spokesperson Setjhaba Maphalla did not respond to calls late yesterday.

In February, Casac applied to the high court to review and set aside Mkhwebane’s report on the Vrede dairy scandal.

Naidoo’s affidavit followed Mkhwebane’s filing of the record of her decision last month, as well as an affidavit in which she explained her reasons. She said that her office had too little money and too few staff to conduct a proper investigation.

Casac is asking the court to impose a punitive costs order against Mkhwebane, in her personal capacity.

The affidavit states that Mkhwebane’s “apparent attempt to protect implicated officials within the department and her subsequent failure to be candid with Parliament – even when undertaking to investigate the involvement of such officials” means there would be no purpose in asking her to investigate the matter again.

“She has shown herself to be incapable of doing so effectively.”

Naidoo states that Casac first brought the application in February, on the grounds that Mkhwebane acted “unlawfully, irrationally and unreasonably” when she failed to properly to investigate allegations of fraud, corruption and maladministration in the dairy project.

But, it says, her record of decision last month shows that her “transgressions were far graver than that”. She not only failed to investigate thoroughly, she deliberately prevented further investigation and protected those responsible.

Casac states that Thabethe was involved at “every stage of the identification and appointment of Estina”, including signing its contract, its 99-year rent-free lease and paid them without any oversight or verifying how the money was spent. 

A Treasury investigation “also identified Magashule and former Agriculture MEC Mosebenzi Zwane as involved in various suspicious aspects of the project”.

Magashule’s office, Casac states, “was allegedly used for the Guptas’ benefit” and his “son was a director in a Gupta-owned company”. Zwane allegedly pushed for the project “and subsequently went on a Gupta-funded, all-expenses paid trip to India”.

Casac states that the Treasury report into the project suggests Magashule and Zwane were even more directly involved. The Treasury report recommends that Thabethe be disciplined alongside Dlamini, but this was never done – a fact Mkhwebane ignored.

Casac noted stark differences between Madonsela’s provisional report and Mkhwebane’s final version.

“Mkhwebane has always maintained that she cannot be blamed for the inadequacy of the report, because by the time she took office, the investigation into the Vrede Dairy Project was already at an advanced stage,” the affidavit states.

But Mkhwebane changed the provisional report fundamentally, toning down Madonsela’s “direct and targeted findings regarding impropriety, abuse of power and maladministration [which] attributed such conduct to particular individuals”.

Casac says it can be presumed that Mkhwebane did this to protect Magashule, Zwane and their officials from “serious incrimination”.

Madonsela found that the inflated pricing in the project amounted “to gross negligence, maladministration and resulted in irregular and fruitless expenditure”. She recommended a forensic investigation. But Mkhwebane removed all those findings and recommendations, instead concluding that these factors were “difficult to determine” because of her “resource constraints”.

While Madonsela required Magashule and Zwane to ensure Thabethe’s conduct was investigated to comply with the Treasury report, Mkhwebane removed this. She replaced it with a requirement that Magashule institute disciplinary action against “implicated officials”, leaving it to him to decide who to take action against.

Madonsela proposed a forensic investigation by the head of the SIU which Mkhwebane removed “without a trace, and without reason”.

“The alteration of the report by Mkhwebane raises disturbing questions about her motives and calls into question her good faith,” the affidavit states.

Casac argues Mkhwebane cannot contend that she removed these remedial actions from the report after receiving adequate responses from the politicians and officials involved. This is because the notices she sent them reveal that the “remedies had already been removed” by the time those notices were sent.

Casac states that when Mkhwebane appeared before Parliament’s portfolio committee on justice, she said the report was already ready when she took office and had been signed off, requiring her to only sent requests for comment to those implicated and incorporate those responses.

However, states Casac, “she altered the provisional report by removing the very remedial action that specifically targeted the politicians she now says she will investigate”.
“She has deliberately misled the portfolio committee to whom she is directly accountable.”

Casac charges that Mkhwebane failed to ask a single question about fraud, corruption and the Guptas’ involvement, and failed to subpoena a single witness, implicated official, or anyone who was supposed to benefit from the project.

Before Mkhwebane’s final report was published, the Hawks raided Magashule’s office. The week before that, the Asset Forfeiture Unit obtained a preservation order placing R220 million of the Guptas’ assets under curatorship.

But Mkhwebane “decided to look the other way” and “acted for an improper purpose and in bad faith in order to protect Magashule”. 
“It is unconscionable that a constitutionally created anti-corruption watchdog would behave in this way,” Casac says. 

Segalwe said that regarding the referral of the investigation to the SIU and AG, the Hawks’ investigation was already at an advanced stage and most of those implicated had been arrested, and the assets were preserved.

“Therefore, the remedial action taken was appropriate ...  the involvement of the politicians was not investigated and neither does it form part of the draft report,” he said. 

“The department has also confirmed that disciplinary action against the former chief financial officer and project manager will start immediately. 

“However, the Public Protector has taken a decision, at the request of the portfolio committee on justice, to investigate any involvement of the politicians in the project. The allegations that no action is being taken against those listed in the Treasury report are incorrect.”

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