SCA orders Mkhwebane to produce her papers for spy agency job

Staff Reporter

The Supreme Court of Appeal (SCA) has ordered Public Protector Busisiwe Mkhwebane to produce within two weeks the documents she submitted when she applied for work at the State Security Agency (SSA).

In a judgment released on Thursday, the Bloemfontein court upheld an appeal by the Democratic Alliance (DA) alongside the opposition party’s members, Glynnis Breytenbach, who is the second appellant, and Werner Horn, the third appellant, against a ruling of the Western Cape High Court.

The appellants, through an interlocutory application, had asked the Cape Town court to compel Mkhwebane to produce her application for the position of analyst at the SSA and a contemplated letter of acceptance for the job, but it was dismissed.

The case, according to court papers, emanates from statements made by Breytenbach and Horn when they held a media briefing on September 6, 2016 in Cape Town.

At that event, Breytenbach released a press statement which alleged that Mkhwebane was not a suitable candidate to be appointed Public Protector as she had been a government spy employed by the SSA during her deployment to the People’s Republic of China by the Department of Home Affairs.

There were further similar statements made by the third appellant.

Mkhwebane, who is the first respondent, found the statements defamatory as they impinged on her integrity and reputation.

She also argued they had no foundation in fact, impacted on the office of the Public Protector – the second respondent – and demanded that the allegations be retracted.

The appellants refused and she sought relief from the High Court.

The appellants filed a notice of intention to oppose Mkhwebane’s application.

But prior to filing their answering affidavit, the appellants filed a notice in terms of Uniform Rule 35(12), seeking the production by the respondents of seven documents they considered they were entitled to.

Mkhwebane, according to court papers, only produced five of the seven items sought.

The refusal by Mkhwebane to produce the remaining two items led to yet another application in the High Court in June 2018 to compel her to produce the two documents in terms of rule 30A of the Uniform Rules.

The appellants contended that the documents sought were directly relevant to the question of whether Mkhwebane was a spy at the material times claimed in the statements complained of and were thus compellable.

But Mkhwebane, in resisting the application to compel the production of the documents, adopted the position that neither of those documents had been “referred to” initially.

Mkhwebane was adamant that she had been deployed by the Department of Home Affairs on September 7, 2009 to the Beijing Foreign Office, which term came to an end on May 31, 2014 and was during that time not employed by nor connected to the SSA, which is a government department with overall responsibility for civilian intelligence operations.

She claimed she was employed by the Department of Home Affairs in Beijing as a councillor for immigration and civic services.

Mkhwebane further stressed that while in China, she was not on the SSA payroll and has never been at any other time.

She submitted to the High Court a confirmatory affidavit from the then director general of the SSA, Arthur Fraser, which stated that Mkhwebane was never in the employ of the security agency “in any manner” while deployed to China by the Department of Home Affairs and that she was subsequently appointed as a member of the SSA on May 11, 2016 until she took up appointment as the Public Protector in October 2016.

The High Court then took the view that neither document had been relied on in the main application or “referred to” as envisaged by the rule requiring production of documents.

It also held that the documents need not have been referred to at all, echoing the stance adopted by Mkhwebane.

When the matter was brought to the SCA, it considered that rule 35(12) is part of a set of rules regulating discovery, inspection and production of documents in relation to litigation.

It held that the production of documents in terms of rule 30A read with rule 35(12), must be “subject to some limitation”, without which there would be absurd results.

It said, in deciding whether to order the production of documents, a court must consider whether they were relevant to the issues between the parties and there must be a direct or indirect reference to the document sought.

The SCA also held that the High Court erred in concluding that there was no reference to the application for appointment to the post of analyst and that it was irrelevant.

It said the question was whether the documents had evidentiary value and might assist the appellants in their defence of truth and public interest.

Her application for the post of analyst at the SSA, said the SCA, was relevant to the time of when and how she was connected to the SSA.

The SCA eventually set aside the order of the High Court and ordered Mkhwebane to produce for inspection and copying her application for the post of analyst in the SSA by no later than April 1, 2021.

The respondents were ordered to pay the costs of appeal jointly and severally as the costs interlocutory application in the High Court.