Public Protector Busisiwe Mkhwebane’s perjury case could possibly be the beginning of the end for her as the head of the Chapter Nine institution, according to the director of Accountability Now, Paul Hoffman.
Mkhwebane appeared in the Pretoria Magistrate’s Court on Thursday on three counts of perjury over her investigation into the apartheid-era loan by the South African Reserve Bank (SARB) to Absa in the 1980s.
“This postponement today [Thursday] is the beginning of the end for the public protector,” Hoffman told The Citizen after the case was postponed to 25 March to prepare for a pre-trial hearing.
Accountability Now was the organisation that laid a criminal complaint of perjury against Mkhwebane with the Hawks. This followed the Constitutional Court’s (ConCourt’s) ruling in July 2019 that upheld a Pretoria High Court judgment which found that the public protector was dishonest regarding the meetings she had had with former president Jacob Zuma in affidavits submitted to the court and the Pretoria Regional Court in 2017 and 2018, respectively.
The ConCourt also ordered that she personally cover 15% of the SARB’s legal costs in the case.
Hoffman believes that the odds are stacked against Mkhwebane given the perjury case, an investigation by the Legal Practice Council for her fitness for office, and the pending parliamentary impeachment process started by the DA.
Her office also announced this week that she had taken a sabbatical until the end of March this year in order to get some rest.
Hoffman said he hoped that Mkhwebane would take this time to reflect on her tenure as the public protector “given all of these procedures against her that are coming down the line”.
“It’s her inability to do her job properly that has gotten her into this situation,” he said. “I think she knows that if the prosecution goes badly for her, she will not have an opportunity to take a sabbatical once she is wearing an orange onesie and residing in a prison rather than in her home.”
Mkhwebane’s lawyer, advocate Dali Mpofu, indicated to the court that they would challenge the prosecution for perjury on the grounds that the case was “frivolous and contrived”. Hoffman said it was up to the National Prosecuting Authority (NPA) to defend its case.
“I think they’ve got a problem with that because the highest court in the land, the Constitutional Court, in the Absa lifeboat/SARB appeal made a finding which is at the basis of this prosecution and that finding – admittedly only on a balance of probabilities – is that she deliberately lied [under] oath, probably to cover up her cosy relationship with the [then] president.
“If she deliberately lied, then she has no business being an advocate and she certainly has no business being the public protector. Obviously, they’re not going to concede the matter because they know the prosecution has to prove beyond a reasonable doubt that she deliberately lied [under] oath. But the prosecutors think they can prove that, which is why they have brought this case,” he said.
Hoffman said he believed that the discussions Mkhwebane had with Zuma were about using her report as an excuse to change the mandate of the Reserve Bank.
“And I think she tried to hide that because she knows the public protector is meant to be an independent office and there are notes of the discussions that suggest that they were looking to see where the Reserve Bank was vulnerable. The answer that she came up with was to direct Parliament to change the mandate of the Reserve Bank, which is something that she absolutely has no power to do.
“In order to mask the amount of discussions that went on between her and president Zuma, she constructed her affidavits in a way that deliberately mislead the court about the amount of interactions that took place in the Presidency,” he said.
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