Mkhwebane had only the ‘masses of the poor’ in mind in her bid to alter Constitution — Mpofu

10 Nov 2022

Suspended Public Protector Busisiwe Mkhwebane had ‘touched the untouchables’ in recommending the Reserve Bank mandate be changed. That’s according to her legal representative, advocate Dali Mpofu, who argued the point at the Section 194 impeachment inquiry on Thursday.

While cross-examining Neels van der Merwe, senior manager of legal services at the Public Protector’s office, Dali Mpofu attempted to “debunk one of the key myths” about Busisiwe Mkhwebane’s back-door attempt at tinkering with the Constitution, with the advice of the State Security Agency and a known Nazi sympathiser.

This had been done, said Mpofu, in an attempt by his client to help the “masses of the poor”, and in doing so, “her work” had touched the “economic and political untouchables”.

Earlier in the day, the highest court in the land, the Constitutional Court, finally put to rest one of Mkhwebane’s most expensive endeavours — her “SARS rogue unit” report. The ConCourt dismissed her application for leave to appeal against the original setting aside of her remedial action.

Read more in Daily Maverick: “Constitutional Court ruling finally slams door on SARS ‘rogue unit’ saga”

Last week, the committee heard that Mkhwebane spent about R15-million defending the report which implicated former finance minister Pravin Gordhan and SARS officials Ivan Pillay and Johann van Loggerenberg.

She was ordered on Thursday to pay Gordhan and Pillay’s legal costs.

In 2020 Mkhwebane was found by the Gauteng High Court to have deliberately ignored evidence and had failed to present her findings to implicated parties prior to issuing her (“rogue unit”) report.

In a 111-page ruling, Judges Selby Baqwa, Annali Basson and Leonie Windell ruled that Mkhwebane’s report was “without foundation, particularly as this conclusion is based on discredited reports and unsubstantiated facts”.

The court directed that their findings be sent to the Legal Practice Council to consider Mkhwebane’s “shockingly inappropriate and unwarranted” attack on Pretoria High Court Judge Sulet Potterill in the PP’s attempt to contest Gordhan’s review of her report.

Big Bad DA

On Thursday, the inquiry heard that, so far, 37 of Mkhwebane’s reports had been reviewed and set aside, 24 were pending and being opposed by the PP, while 23 were unopposed.

It has been a bad week all round for Mkhwebane, who was also recently informed by her office that it would no longer pay the rent for her accommodation in the exclusive Bryntirion ministerial estate in Pretoria. About R4-million in public funds was spent on this arrangement, which has now been terminated. Mkhwebane has agreed to vacate the premises.

Van der Merwe earlier provided explosive evidence of how, in 2016, Mkhwebane had asked for a research paper which included proposals for amendments to the Constitution, later contained in her CIEX report.

It was a move the courts immediately ruled was a breach of her mandate, as well as the principle of the separation of powers.

Van der Merwe testified that he had drafted research which contained proposals by Stephen Goodson, a confessed admirer of Adolf Hitler’s economic policies, as he had been under the impression this would form part of a submission by the PP parliament’s “constitutional review committee”.

It had not, he said, amounted “to an order the central bank’s mandate be altered”.

Later, Mpofu attempted to pin on Van der Merwe the central bank proposal, saying a letter the lawyer had sent to Mkhwebane had led to the suggested changes that found their way into the CIEX report.

This, responded Van der Merwe, was “speculative” and he doubted Mkhwebane had read his correspondence with her.

All day, Mpofu drummed home the narrative that the reason the impeachment inquiry was taking place was as a result of a political witch hunt by the Democratic Alliance. He said the party had already claimed in 2016, prior to her appointment, that Mkhwebane had been an SSA “spy”.

It was the DA that had harassed Mkhwebane from the start, he added. And when she began her CR17 investigation into Ramaphosa, they struck again.

The inquiry has heard that Mkhwebane did indeed work at the SSA previously, and maintained contact with the head of the agency, Arthur Fraser, the man who lodged a criminal complaint against President Cyril Ramaphosa in June this year.

‘We have battered syndrome’

The morning kicked off with the inquiry being “hijacked”, according to committee chair Qubudile Dyantyi, by the presence of advocates Musi Sikhakane and Vuyani Ngalwana, both named in the list of legal practitioners who were paid by the PP and wished to address the committee.

Mpofu said both men were “eminent counsel” whose names had been flighted as receiving payment for work done for the PP, and that their lives were now in danger.

“We have battered syndrome from overt and covert racism,” complained Mpofu.

Dyanti said the committee would allow Sikhakane 10 minutes to address it out of respect, but would not be entertaining any further addresses.

Barnabas Xulu, Judge President John Hlophe’s lawyer, had provided the committee with written submissions after he cropped up unexpectedly in an attempt to force a recusal of evidence leader, advocate Nazreen Bawa, said Dyanti. The two eminent counsel could do the same.

Xulu, who received R20-million in legal fees from the state in a matter involving the Department of Fisheries, Forestry and Environment, has yet to repay the amount and has had his assets frozen in the meantime.

Xulu had attempted to leverage a complaint about Bawa — who is on the prosecuting team in the fisheries saga — to the Legal Practice Council to force her to step down.

Sikhakhane, it will be remembered, previously provided a report on the SARS “rogue unit”, and also represented Jacob Zuma at his brief Zondo Commission appearance (which led to Zuma’s later incarceration for contempt of court).

Ngalwana represented the ATM and the UDM in Mkhwebane’s litigation against the DA and Parliament.

In 2020, SARS announced it would no longer place any reliance on Sikhakane’s report.

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Back then, SARS Commissioner Edward Kieswetter informed the advocate that “taking into account the history and developments around the Sikhakhane Report, the need for all affected parties to find closure as well as the need for SARS to move forward in fulfilling its vitally important mandate, SARS holds the view that it will not place reliance on nor utilise the report for any purpose”.

Mpofu on Thursday said the disclosure of the names of legal practitioners who had received payments of over R2-million had been a gross violation, and that only black lawyers had been targeted. He said the “suggestion” that money had been “looted” by these lawyers was incorrect, and also that some of the amounts that had been flighted were inaccurate.

While Mpofu did not dispute that he had received R12-million in fees, he said the amounts attributed to Mkhwebane’s personal legal representatives, Seanego, had been incorrect.

Earlier Bawa told the committee that R10-million had been paid to Seanago, and not R48-million, as had been flighted in evidence.

Sikhakane was allowed to address the committee, where he slammed Bawa and the media as “racist” for implicating only black legal practitioners. Van der Merwe later explained that of the eight who had shown up, seven had been black.

Bawa conceded that errors had been made last week in relation to amounts paid, and that an amount attributed to Ngalwana had in fact been paid to Mpofu.

The information about fees received, she told the committee, had been provided in response to a question of how Mkhwebane had spread the R147-million during her six-year term. There had been no malicious intent.

Van der Merwe is listed as the final witness before the inquiry will break to allow Mkhwebane to prepare her testimony,

The hearing will resume on Friday. DM

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