Mkhwebane lawyer Mpofu latches on to Mogoeng minority ConCourt opinion

10 Aug 2022

Former Chief Justice Mogoeng Mogoeng’s minority opinion in the Constitutional Court ruling setting aside suspended Public Protector Busisiwe Mkhwebane’s CIEX/Absa report was wheeled out of the armoury and into the Section 194 inquiry on Wednesday.

Advocate Dali Mpofu, representing suspended Public Protector Busisiwe Mkhwebane in the parliamentary inquiry into her fitness to hold office, prefaced his move with the justification, once again, that judgments of the apex court were merely “opinions”.

Mpofu cross-examined advocate Livhuwani Tshiwalule, who had been an investigator in the CIEX/Absa matter after a complaint was lodged by advocate Paul Hoffman of Accountability Now in 2011. Tshiwalule worked closely with former Public Protector Thuli Madonsela.

Read more in Daily Maverick: “Analysis: Public Protector’s strange Absa report, and disturbing attack on Reserve Bank”

Hoffman had sought an investigation into a government agreement with CIEX, a covert investigative body in the UK, in relation to its 1997 investigation into the SA Reserve Bank’s 1992 R1.2-billion bailout of Bankorp.

Earlier in the day, committee members had to wrap their heads around the Mpofuesque logic that Mogoeng’s minority “opinion” in setting aside the Public Protector’s report, counted for more and should be preferred over a judgment by a majority of nine Constitutional Court judges.

Read more in Daily Maverick: “Reserve Bank and Parliament trump Public Protector as court sets aside remedial action to change Constitution”

The Gauteng High Court too, in August 2017, found that Mkhwebane’s report had sought to alter the constitutional mandate of the Reserve Bank.

On Wednesday, Tshiwalule told the committee that Madonsela had believed former president Thabo Mbeki and former finance minister Trevor Manuel had violated three sections of the Constitution relating to the Members Ethics Act in failing to act on the CIEX report’s recommendations.

Tshiwalule said they had both been of the view that monies owed to the South African government should be repaid. The investigator added that when he had interviewed Mbeki on the issue of why it had taken so long to act, Mbeki had said this would have resulted in a run on the banks, damaging the economy.

In fact, when Mkhwebane released her report on 19 June 2017, its impact on the economy was evident.

Read more in Daily Maverick: “The curse of CIEX — Anatomy of the legal boomerang that came back to haunt Mkhwebane”

“The rand depreciated by 2.05% from R12.79 to R13.05 against the US dollar. R1.3-billion worth of South African government bonds were sold by non-resident investors,” was how Reserve Bank governor Lesetja Kganyago put it at the time

Although some of these sales had subsequently been reversed, they were still “significant”, Kganyago added.

“The day’s sales… rank amongst the biggest over the last three months,” according to Kganyago in his affidavit filed as part of the court review of the Public Protector’s report.

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At the start of the fifth week of hearings, evidence leader Nazreen Bawa had set out various court judgments relating to Mkhwebane’s CIEX/Absa report.

Later, Mpofu opted to hitch a ride on Mogoeng’s judicial robe tails.

The former Chief Justice, in his opposing opinion, had stated there had been “no malice” on the part of Mkhwebane with regard to her conduct in the CIEX matter. That she had kept meetings with the State Security Agency and Jacob Zuma secret was also no big deal, said the then Chief Justice.

Mkhwebane could have shredded these, suggested Mogoeng, and the fact that she hadn’t was evidence that she was not the “dishonest conspirator” she was made out to be.

In his minority view, the former Chief Justice reasoned that only cynics would “readily infer cynicism” with regard to Mkhwebane’s meeting with the SSA and former president Zuma.

Mpofu complained bitterly that the evidence leaders had concentrated only on taking committee members through the majority judgment, and wanted to highlight that Mogoeng, in fact, had got it right, so to speak.

Vrede dairy farm

In a day jam packed with evidence on various fronts, Tshiwalule told committee members that Madonsela had been unhappy with the original investigation into the Gupta-sponsored Vrede dairy farm in the Free State.

Madonsela had hoped to release this report before her term ended, he said.

With regard to Hoffman’s original complaint, Tshiwalule repeated that there had been nothing to suggest that Hoffman had wanted the role of reserve banks around the world to be investigated.

“I must say I did not understand this request. There was no link between the complaint that came from Hoffman and this request.”

Evidence was also presented by Tshiwalule that the executive summary of Mkhwebane’s CIEX report was “entirely new”, and that he had not been consulted about this.

After Tshiwalule left the office of the PP, he told committee members he had been visited by police at his new workplace. Officers had informed him that he was being investigated in connection with the leak of Mkhwebane’s preliminary report.

Mkhwebane had lodged a complaint with the police in this regard. The National Prosecuting Authority had also contacted him, asking him to respond to questions — which he did.

“After that, no one contacted me again,” he said.

Mkhwebane was suspended from office on 9 June. The parliamentary impeachment hearings got under way on 11 July.

The inquiry continues. DM

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Vrede dairy farm