Parliament, Thursday, 30 March 2023 – The Committee for Section 194 Enquiry into Public Protector (PP) Adv Busisiwe Mkhwebane’s fitness to hold office today heard that Adv Mkhwebane’s focus during her investigation into the South African Revenue Services (SARS) Investigative Unit was more on the manner in which “surveillance” equipment for the unit was procured.

Adv Mkhbewane agreed with her legal representative Adv Dali Mpofu, SC, that her focus was to raise questions about whether the equipment had been procured in line with the Public Finance Management Act (PFMA).

She told the committee that SARS refused to provide documentation about the procurement of the equipment, which led her to infer that it was illegally procured. According to Adv Mkhwebane, her office had evidence that SARS had the equipment and it was being utilised. She further stated that “Surely they need to account for that. Hence my inference that it was a guarded secret”.

Regarding the finding of the Sikhakhane report about the procurement of the surveillance equipment – that the unit did not have equipment for wiretapping and interception but had a finding of illegality about the SARS unit, she claimed she never knew the report was discredited. She said that she used the findings of Sikhakhane report “like any other report” in her own investigations into the SARS unit.

Whilst she concedes that there was no information that Minister Pravin Gordhan, then commissioner of SARS, was participating in the unit’s activities and may not have been told about its alleged wrongdoing, she maintained that the “buck stopped with him”.

Adv Mkhwebane stressed that her investigation into the SARS unit was fact-finding and inquisitorial. She denied that she was “out to find someone guilty”. She told the committee she cannot be blamed for people's lives being ruined by her invalidated SARS investigation because she was just trying to ensure that SARS complied with its own policies and the PFMA.

She stated that she was not given access to SARS policy on staff appointments and transfers during her investigation into recruitment and appointments. Adv Mkhwebane said she did not find that Minister Gordhan had been involved in the appointment of Mr Johann Van Loggerenberg, but that he had signed a memorandum that related to other appointments.

Shortly after the lunch break, Adv Mpofu raised the issue of a quorum of the meeting claiming it is illegally constituted as there was no enough members in the meeting. Committee Chairperson Mr Qubudile Dyantyi ruled that he will not allow the process to be digressed and as in the past he wanted the focus to be on the testimony. Mr Dyantyi repeated his previous position that if Adv Mpofu wishes to raise other matters, it should be done at the end of the day.

Just before concluding today’s meeting, Mr Dyantyi responded to the concern raised about unavailability of other members of the committee. He said other committee members are on oversight visits to provinces with diffirent parliamentary committees. This is why many of them are not in Cape Town physically. He said they connect virtually from where they are, but they are in and out of the meeting this week due to oversight visits.

He reiterated that physical presence is not compulsory as the committee has held hybrid meetings since the start of the hearings. He assured the meeting that there definitely was a quorum when Adv Mpofu raised the matter as 12 members constitute a quorum. Adv Mpofu at the time indicated that there were 14 members on the virtual platform. “I never start or continue a meeting without a quorum as was seen before at the hearings. I would rather delay the start,” said Mr Dyantyi.

The committee will continue tomorrow with further evidence from Adv Mkhwebane. 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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