South Africa’s Public Protector Busisiwe Mkhwebane is to appear in court next month — as an accused.
According to documents TimesLIVE obtained on Tuesday, Mkhwebane will appear in the Pretoria magistrate’s court on January 21 on three counts of perjury.
The Office of the Public Protector has the mandate to support and strengthen constitutional democracy. A supreme administrative oversight body, the Public Protector has the power to investigate, report and remedy improper conduct in state affairs. The Public Protector must be accessible to all persons and communities. Anyone can complain
to the Public Protector.
A summons ordering her to appear in court is dated Tuesday, December 15.
The charge stems from a perjury complaint against her laid by Accountability Now Director Paul Hoffman in August last year. In an affidavit Hoffman submitted to the police, he reportedly said the criminal charge arose from a Constitutional Court judgment that found Mkhwebane was dishonest in her conduct in the case surrounding the investigation into the apartheid-era loan by the SA Reserve Bank to Bankorp, which is now part of Absa.
On Tuesday night, Oupa Segalwe, spokesperson for the Office of the Public Protector, said: “As the office, we are not going to comment on the issue at this stage.”
National Prosecuting Authority spokesperson Sipho Ngwema said: “The director of public prosecutions took a decision to prosecute after he carefully assessed the evidence presented to him by the Hawks. This is in line with the prosecution policy and the law.”
A letter to Mkhwebane from Hawks head Gen Godfrey Lebeya, which TimesLIVE obtained and which is stamped December 11 2019, directs Mkhwebane to make a warning statement to a Hawks officer.
Earlier this week, The Star reported that President Cyril Ramaphosa was allegedly applying pressure to have Mkhwebane charged.
On Monday, it reported that “someone from Ramaphosa’s office made a WhatsApp call to a police officer at the station asking why Mkhwebane was not arrested yet”, adding that pressure was being exerted to arrest Mkhwebane before January 13 “before she delivers a report in which Ramaphosa is being investigated for approving the ANC’s controversial trip to Zimbabwe on a defence force aircraft”.
The presidency did not comment on that report.
Mkhwebane’s charge sheet, which TimesLIVE has also obtained, states that the perjury charges related to her investigation into the “lifeboat” lending agreement during the apartheid era between the Reserve Bank and the now-defunct Bankorp, that was later taken over by Absa. A complaint about the so-called lifeboat agreement was made to the public protector’s office in 2010, and the investigation was taken over by Mkhwebane when she was appointed in October 2016.
About two months after her appointment, the charge sheet states, Mkhwebane sent her provisional report to the parties — which also included then-president Jacob Zuma alongside the Reserve Bank and Absa — to “respond to her finding that the SARB improperly failed to recover funds of R1.125bn from Absa”.
The following year, she then released her finalised report in which she found that the government and the Bank “failed to recover R3.2bn from Bankorp and/or Absa”, and directed parliament to “strip SARB of its primary objective to protect the value of the currency”, and to reopen a 1998 Special Investigating Unit (SIU) probe into the matter.
A subsequent joint application to the high court to set aside Mkhwebane’s remedial action was launched by the SARB, Absa, and the Minister of Finance and the Treasury, which won their case in February 2018.
The following month, Mkhwebane applied for leave to appeal the judgment and was denied. She then appealed directly to the Constitutional Court which found that she was dishonest in her conduct in the saga, after which Hoffman laid the perjury complaint against her.
It is the affidavits attached to these cases which Mkhwebane deposed to — and in which the state alleges that she lied — that form the basis of the perjury case for which she must now appear in court.
“About 24 November 2017 …[ Mkhwebane] unlawfully and intentionally under oath deposed to an answering affidavit … wherein she declared that she only had one meeting with the President [Zuma] which was on 25 April 2017, while knowing that the declaration was false,” states the charge sheet explaining the first perjury count.
The second count relates to an affidavit Mkhwebane deposed to dated April 2018 “wherein she declared that she had a second meeting with the president [Zuma] on 7 June 2017 and that the purpose thereof was to clarify the President’s response to the provisional report while knowing that the purpose declared was not correct”.
About the third count, the charge sheet states that in an affidavit dated June 2018, Mkhwebane allegedly “declared that she did not discuss the final report/new remedial action with the President on 7 June 2017 while knowing that it was not true.”