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Busisiwe Mkhwebane’s legal team back in the house; RET's Reserve Bank dystopia explained

Busisiwe Mkhwebane’s legal team back in the house; RET's Reserve Bank dystopia explained
Marianne Thamm
By Marianne Thamm
9 Nov 2022
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Suspended Public Protector Busisiwe Mkhwebane’s legal team, led by advocate Dali Mpofu, was virtually back in the benches as day 33 of her Section 194 impeachment inquiry remained on track.

On Wednesday, advocate Bright Shabalala, for Suspended Public Protector Busisiwe Mkhwebane, attempted to use the cross-examination of Nelisiwe Thejane, the executive manager of provincial investigations in the Office of the Public Protector of South Africa (PPSA), to drive home a view that the Democratic Alliance is the Satan in the soup here.

After picking apart her qualifications, Tshabalala hit Thejane with: “You are aware the motion for the removal of Mkhwebane was initiated by former DA chief whip Natasha Mazzone?”, setting the tone for the morning.



It is of no consequence, it appears to Mkhwebane’s legal A-team, that we are gathered in Committee Room M46 of the Marks Building in Cape Town as a result of a tortuous (and historic) process, initiated after the National Assembly in March 2021 adopted a recommendation by an independent panel that the Section 194 inquiry should go ahead.

Thejane explained this to Shabalala in her response. She is a lawyer after all, with two degrees.

But in Team Mkhwebane, none of this matters. The panel, the submissions, even by the Public Protector herself, the court judgments, all of it, didn’t happen. The process, in their view, is “illegitimate” and “illegal”.

It is the DA that is driving the “political witch-hunt”, it is they who lodged the complaint in the first place.

How we got here


The process to bring Mkhwebane to account was fair and transparent, there for all to challenge, all the way. And the Public Protector did. She even got her office to pay for her legal representation.

The matter to be considered?

Is there enough prima facie evidence to prove misconduct and incompetence on the part of Busisiwe Mkhwebane?

A panel chaired by retired Constitutional Court Justice Bess Nkabinde found there was “substantial information that constitutes prima facie evidence of incompetence” (para 254).

Not only that, the panel found there was enough information that Mkhwebane had “grossly overreached and exceeded the bounds of her powers in terms of the Constitution and the Public Protector Act by unconstitutionally encroaching on Parliament’s exclusive authority when she directed Parliament to initiate a process to amend the Constitution”.

This particular episode of overreach, we now know, was directed by the State Security Agency (SSA) and its then head, Arthur Fraser, and inspired by the economic policies of Stephen Goodson, an admirer of the Nazi genocidal mass murderer Adolf Hitler.

Mkhwebane’s hellish deadlines


The last time Thejane testified was in September, when an attempt to derail the proceedings flared as a frisson of renewed energy spread through Team Mkhwebane and the RETians with the news arriving that the Western Cape High Court had set aside President Cyril Ramaphosa’s decision to suspend her.

She had a five-minute gap to get to the office, only to find the DA had already taken it, challenging the ruling, which automatically suspended the judgment (The decision was ultimately overturned and Mkhwebane remains suspended).

On the day Thejane was set to be sworn in, two months ago, we learnt that Mkhwebane was already on a plane back to the PPSA offices in Pretoria and had handed in a sick note to the inquiry that very day.

The Phala Phala files were burning a hole in Deputy Public Protector Kholeka Gcaleka’s safe.

On Wednesday, Mpofu, before Thejane was due to be cross-examined, informed the inquiry’s chair, Qubudile Dyantyi, that he would like to address the committee.

He wished, he said, to clear up what had actually occurred on 27 October when Mpofu and lawyers from Seanego Attorneys walked out, as well as to provide an update on the Public Protector’s threatened legal challenge to Dyantyi and DA MP Kevin Mileham’s recusal and the refusal thereof.

Dyantyi would have none of it and said Thejane had been delayed long enough by various postponements and adjournments and that Mpofu and Mkhwebane could address the committee when Thejane’s cross-examination had ended.

Thejane had previously testified to the toxic atmosphere in Mkhwebane’s office and that the Public Protector had been a hard taskmaster. Staff were expected to put in long hours, work weekends and meet impossible deadlines for reports. Many often booked off ill.

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On Wednesday, she said she had rows with Mkhwebane about reports that she felt were not ready for the Public Protector’s signature, but Mkhwebane was interested only in deadlines.

Shabalala attempted to discredit Thejane, suggesting that a “poorly trained person will never be able to complete a report”, to which she responded that unrealistic deadlines in fact often interrupted the training of staff as they were called away to finalise reports.

Mpofu took a second crack at Thejane after Shabalala, turning up the heat in an attempt to unmask the real “hand” behind the witness and who it was that had “put words into her mouth”.

“It’s my statement. I signed it,” she replied.

Even in the face of a threat by Mpofu that he would lay a criminal charge against Thejane for “false testimony”, she stood firm.

“I have not given false information,” she said.

Mkhwebane, said Mpofu, was the best Public Protector South Africa had ever seen and was working hard to clear a backlog of cases left by her predecessor, Thuli Madonsela.

Thejane, said Mpofu, had fabricated evidence against Mkhwebane and was a disgruntled employee.

RET's SA Reserve Bank dystopia


Last week, Neels van der Merwe, the senior manager of Legal Services at the Office of the Public Protector, gave explosive evidence of how in 2016 Mkhwebane had asked for a research paper which included proposals for amendments to the Constitution.

She was exploring two matters: an amendment to section 25 of the Constitution, which deals with land, and a further amendment to the section dealing with the mandate of the SA Reserve Bank.

In his affidavit, Van der Merwe set out a vision of South Africa’s brave new economic system which someone at the SSA and Mkhwebane thought they would bring to life through the back door, illegally and unconstitutionally.

Van der Merwe said that Mkhwebane’s proposed amendments were based on the following principles (as he had understood them): “Parliament would have the sole power to issue money in any form, which would be interest and debt-free.”

Further visions of economic emancipation, he said, included: “The amount of money created is [to be] decided by the Monetary Trusteeship, which is comprised of no fewer than seven but not more than 11 competent individuals who have no independent private interest, to be appointed by the National Assembly and answerable to it on a regular basis” and that this “trusteeship” would meet once a month.

There, it would “exercise its duties and will have the full cooperation of the Minister of Finance and State Bank of South Africa (People’s Bank)”.

The minister of finance, in this world, would “be responsible through his/her agencies for issuing the directives of the Monetary Trusteeship,” Van der Merwe set out.

“New money will be paid into the economy by the Treasury and withdrawn, when necessary, in order to keep prices stable. The withdrawal will be achieved by temporary taxation.”

In addition to the amendments to the Constitution, Mkhwebane proposed a new “Monetary Reform Act” providing for the nationalisation of the money supply, but not the banking system.

There would be a statutory requirement that all commercial banks and other lending institutions “hold at all times 100% reserves, putting an end to the practice of fractional reserve banking”.

And the plum on this National Socialist cake: “the retirement of the national debt (currently R2-trillion compared to R294-billion in 1994)”.

It would also mean “withdrawal from all international banks and related agencies such as the IMF World Bank and Bank for International Settlements” as well as the establishment of the Foreign Exchange Stabilisation Fund.

For the rest of eternity, South Africa would see “an abolition of income tax and reduction in VAT (government, provinces, municipalities and organs of state will no longer have to pay interest on their loans). [In addition, there would be] zero inflation (it will no longer be necessary to expand the money supply for the payment of interest which is inflationary)”.

It also foresaw: “Full employment due to the introduction of a massive public works initiative that will reform our entire society in which every South African will participate. This will include upgrading of our roads, rails, ports, agriculture, education, science and technology and every other sector of our society.”

A tea break, not a walkout


Towards the end of a long day, Mpofu raised the issue of the disclosure to the committee by Van der Merwe of who had received payment from the PPSA in legal fees. (Mpofu himself was the recipient of R12-million.)

The focus, Mpofu complained, had been “black people” and that those named now lived in “fear of their lives”.

He denied staging a “walkout” on 27 October, saying: “We left, we were out, just as you do every time there is a tea break, but we were not staging a walkout.”

He also complained about the tight time frames provided by the committee for Mkhwebane to prepare her defence.

The committee resumes on Thursday. DM

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