Parliament, Wednesday, 5 April 2023 – The Committee for Section 194 Enquiry into Public Protector (PP) Adv Busisiwe Mkhwebane’s fitness to hold office were today taken through the court judgements relating to the South African Revenue Services (SARS) report and the use by the PP of the classified Inspector-General of Intelligence (IGI) report therein.

Evidence Leader Adv Nazreen Bawa, SC, referred to the then Minister of State Security’s, Ms. Dipuo Letsatsi-Dube, response to Adv Mkhwebane's letter where she warned the PP that her possession of the classified report was a criminal offence. The then Minister further told Adv Mkhwebane that: “I must re-emphasise the significance of the classification and the danger, which disclosure of classified information poses to the intelligence establishment and its members. Your continued unlawful possession of the classified report is disconcerting, especially in light of the express caution by the IGI to you concerning the statutory limitations imposed by the Oversight Act on the disclosure of investigation report and the fact that the law has been violated in this regard.”

Adv Bawa said the then minister went on to say that for Adv Mkhwebane to retain unlawful possession of the classified document in order to verify its authenticity or classification status, which has already been confirmed as unlawful by the IGI, would only aggravate the contravention of the law. The committee heard that the fact that Adv Mkhwebane and members of her office have Top Secret security clearance, did not imply that the entire office would automatically have access to classified documents.

The then minister also stated that the report’s “contents must not be disclosed to unauthorised natural or juristic persons”, heard the committee.

The other evidence leader, Adv Ncumisa Mayoi pointed to a February 2019 letter from then State Security Minister Letsatsi-Dube, referring to a meeting with Adv Mkhwebane, which states that Adv Mkhwebane did not bring the unlawful possession of the IGI report to the attention of relevant authorities. The letter also states that the IGI could only disclose its findings after consultation with the president and the minister. The then minister confirmed that she was not consulted about the disclosure of the report, and considered it not in the national interest. She further requested that the PP return the report as “a matter of urgency”.

Adv Bawa clarified at the end that evidence leaders were not seeking to make a closing argument, but were rather trying to take the committee through paper evidence that is already before them.

At the close of the meeting, Committee Chairperson Mr Qubudile Dyantyi, expressed appreciation to Members for having taken part in the exercise with evidence leaders since Monday and hoped they found it useful.

Regarding the challenges with funding for Adv Mkhwebane’s legal team, Mr Dyantyi said there is “serious work being done”. He said there will be a clearer indication at a later stage whether the meeting will resume with the hearings or with the evidence leaders next week.

The committee will continue next week. The committee was established on 16 March 2021 to conduct a constitutional inquiry into the PP’s fitness to hold office and is now expected to conclude its work towards the end of May 2023. Committee documents can be found at Committee for Section 194 Enquiry - Parliament of South Africa


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