While former public protector Thuli Madonsela did not involve the intelligence services in her CIEX-Bankorp investigation, the spooks tried to pry into the documents given to her by CIEX.
Madonsela on Monday told the parliamentary inquiry into her successor Busisiwe Mkhwebane’s fitness to hold office that she (Madonsela) only interviewed State Security Agency (SSA) director-general Billy Masetlha for historical information.
“The SSA was never involved in the investigation except for an interview with Masetlha regarding why his institution got involved in the original contract with ClEX and how the process unfolded,” she said.
“Strangely though, after leaving documents with a colleague from the South African mission in London, which had been given to me by CIEX's Michael Oatley at an interview this colleague accompanied me to, the documents arrived from the SSA, opened and with a note from the SSA director-general. They were meant to be transported by the department of international relations and co-operation.”
She met Oatley on September 15 2015, and they agreed she would leave the documents he had given her and further documents he was going to give her with a colleague at the embassy. The record of that meeting was also kept by that colleague and later sent with a box that came already opened from the SSA, she said.
Madonsela did not elaborate on whether any documents were missing or tampered with.
She said key changes she observed in the final ClEX report included the remedial action regarding changing the powers of the South African Reserve Bank, which was not the issue as the matter concerned lending and debt collection practices.
Madonsela is one of the witnesses Mkhwebane requested parliament to subpoena to the inquiry.
Her appearance last week was cancelled because Mkhwebane’s legal representative, Adv Dali Mpofu SC, and the inquiry’s evidence leaders were not prepared to lead her evidence, each side saying she was not its witness.
While Mkhwebane had called for Madonsela to testify about her role in the CIEX and Vrede dairy farm investigations, her predecessor refused to consult her legal team and declined their offer to help her draft her affidavit. This was the reason Mpofu could not lead her evidence.
About CIEX, Madonsela said she was the lead investigator at the start of the investigation, working with a trainee investigator. This was because the complaint had previously been rejected by the staff of the public protector's office because it preceded the office's establishment in 1995.
There were also concerns about the efficient use of resources, given the lapse of time, making this a cold case compounded by prescription rules regarding the recoverability of relevant funds.
But she was convinced by the complainant, Paul Hoffman, that there was adequate information that showed this was an easy matter and the bank concerned had admitted to owing South Africa money.
She also decided to investigate because Hoffman had convinced her there was already a relative agreement and if the money was recovered it could make a difference in funding mainly social and economic rights such as education, health and RDP housing.
She did the investigation over and above her overall responsibilities as public protector, which she said accounted for the delays in the investigation.
“We looked at whether government processed the CIEX investigation report and dealt with it properly and, to the extent that it did not, whether that was improper.
“Our focus was not on the original loan or lifeboat; our focus was on what happened after 1998. And it turned out that it was a very complex matter,” she said.
Madonsela said many people who appeared before her wanted her office to investigate the original loan or the original transaction.
She said when her term ended she left no final report or approved provisional report. “I’ve noted the documents that purport to be documents from my desk; they are totally changed.”
Last July, a former investigator in the public protector’s office, Tebogo Kekana, who was fired in 2021, told the inquiry the SSA drafted a portion of the CIEX report.
The report was set aside by the Pretoria high court as unconstitutional.
Litigation on the same report led to the Constitutional Court upholding a personal and punitive costs order against Mkhwebane for being dishonest in how she conducted herself during the litigation.
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