The major foes of SA’s constitutional democracy star in Busisiwe Mkhwebane's fight of a lifetime

Since the start in April this year of the historic Section 194 impeachment inquiry into suspended Public Protector (PP) Busiswe Mkhwebane, key players and institutions that have featured in a sustained attack on the Constitution and democracy itself have all been brought into one room.

And it is pretty crowded.

There, a cluster of well-known professionals - from academics to judges and lawyers, to self-styled “legal advisors”, PR companies and NGOs - have found common ground in the view that the rule of law is “a hindrance”, a Western-inspired intellectual and political straightjacket. 

In the thick of it all is a key government institution, the State Security Agency (SSA) and its former head, Arthur Fraser.

Mkhwebane not only moved to the Public Protector South Africa (PPSA) from the SSA, but maintained contact during her tenure. She also explored allowing the agency to install IT systems at the “independent” Chapter 9 institution. 

Fraser and the SSA “deployed” staff to the PPSA’s office and the inquiry has also heard the agency was instrumental in assisting Mkhwebane’s attempt in 2017 at altering the Constitution in her now discredited CIEX/Reserve Bank report. The SSA had provided the wording, witnesses have testified.

Not only that, Mkhwebane consulted Stephen Goodson, an anti-Semitic, Holocaust denier, and fervent admirer and defender of Nazi leader Adolf Hitler, on proposals to alter the mandate of the Reserve Bank, which she attempted to pull off in her CIEX report.

Then there is the role of the SSA in the drawn-out matter of Mkhwebane’s “SARS Rogue Unit” report - also set aside by the courts - which the PP failed to disclose. Her meetings with Jacob Zuma himself she also kept secret.

The politician with the biggest target on his back and who has been firmly in Mkhwebane’s gun sights is Minister Pravin Gordhan, on whom the PP spent R15-million in legal fees in litigation, losing at every turn.

Evidence leader, Advocate Nazreen Bawa, has informed the committee that Mkhwebane spent R158-million on “consulting and professional fees” between 2016/17 and 2022, R147-million of which consisted of expenditure on “legal fees”.

This past week, PPSA legal head Neels van der Merwe gave a breakdown of where some of this money went. 

Legal largesse 

A lot of people in the room, including Advocate Dali Mpofu and Mkhwebane’s instructing attorneys, Seanego, have benefitted handsomely from the litigation funnelled through her office.

Mpofu to the tune of R12-million and Seanego R49-million.

So too Paul Ngobeni - who goes variously as “Dr” and says he is an advocate - and who is a key player in the attack on the judiciary. Ngobeni goes way back to 2008 when Jacob Zuma was a deputy president facing rape charges.

It also became clear Mkhwebane strayed far beyond her mandate, even exploring whether Section 25 of the Constitution could be amended. This over and above her attempt at altering the mandate of the Reserve Bank. 

Van der Merwe testified that in 2016 Mkhwebane had asked for a research paper which included proposals for an amendment to Section 25.

The PP was looking at changes to the Extension of Security of Tenure Act 62 of 1997 aimed at protecting rights and contained in Section 25, which also deals with the contentious “expropriation without compensation” clause.

Mkhwebane’s note to Van der Merwe read this should be done “to all access to Land [sic] as a means to economic emancipation, the Bill of Rights to be applicable to citizens and remove everyone since that includes even illegal immigrants? [sic]”

Sisulu leads the onslaught

Roll back to January 2022 when ANC presidential hopeful and Minister of Tourism Lindiwe Sisulu (who took an oath of office) launched an unprecedented and vitriolic attack on the supreme law of the country and the judiciary.

Sisulu described some members of the judiciary as “mentally colonised”.

She wrote: “The judiciary is not untouchable and the South African Constitution is not a holy script.” 

Ngobeni was once Sisulu’s “Special Advisor”. 

Former PP Thuli Madonsela investigated Ngobeni after a complaint by the Democratic Alliance (DA) that he might have misrepresented himself. Madonsela found that Ngobeni was indeed a “fugitive from justice” in the US.

Ngobeni has been a vocal supporter of Jacob Zuma and lobbied hard for rape charges against the then deputy president to be dropped. He also stepped up in 2009 to back Western Cape Judge President John Hlophe - who has since been found guilty by a Judicial Conduct Tribunal of gross misconduct - after he was accused of improper conduct. 

Hlophe had accepted a retainer from the Oasis group while allowing the company to sue another judge, Siraj Desai, in his division.

Ngobeni is also a key propagandist for the Justice for Hlophe Alliance - saying criticism of the Judge President was “anti-transformation”.

None of this stood in the way of Mkhwebane’s appointment of Ngobeni in 2017 to “guide” her on key matters, including her impeachment inquiry, the Vrede Dairy scandal, the CR17 probe, the SARS “rogue” unit investigation and the CIEX matter. 

Ngobeni’s influence and role in Mkhwebane's chosen legal path was substantial and included roping in Professor Sipho Seepe and former EFF official Kim Heller to provide communications for the PPSA and Mkhwebane specifically. Seepe, like Ngobeni, was an adviser to Sisulu in 2009.

Seepe and Heller pitched a brief saying “Opposition to the PP is akin to a spiritual war”.

https://www.dailymaverick.co.za/article/2022-11-03-bell-pottinger-like-propaganda-campaign-against-judiciary-and-changes-to-constitution-on-land-expropriation-part-of-mkhwebanes-mission-hearing-told/

This according to Heller who advised that this would “require a very sophisticated reincarnation positioning exercise. The echo chamber that has been unleashed on the office and her person is heavily resourced.”

Heller and Seepe were paid R96,000 for those PR services through Ngobeni’s company, which in turn billed Seanego Attorneys, which would bill the PP. Ngobeni also billed for legal advice.

While Ngobeni looms largest over proceedings, Barnabas Xulu, Hlophe’s long-standing legal representative, made an unexpected appearance at the 194 inquiry in a peculiar and failed attempt at derailing events.

Xulu himself has been ordered to pay back R20-million in legal fees to the state in a matter involving the Department of Fisheries, Forestry and Environment.

He also represented Ngobeni in 2011 when Madonsela had investigated his qualifications and criminal record.

Dots have joined…

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The tangled web

A huge admirer of Ngobeni was the late Sifiso Nyembe, who was engaged as “chief of staff” by the PP in early 2019. A vocal supporter of the PP, he described those opposed to her as a “lynch mob”.

So, when Mkwebane emailed Nyembe asking him to enlist Ngobeni to work with Seepe and Heller, he obliged.

This week, breaking down the spread of the R147-million spent over the past six years, Bawa set out a tight legal circle with an A-list of high-powered beneficiaries.

Advocate Thabani Masuku, who represented Hlophe in his challenge to the finding by a Judicial Conduct Tribunal of gross misconduct, scored R4.5-million from the PP for his work.

Jacob Zuma’s sometime legal representative, Advocate Muzi Sikhakhane, was paid R4.7-million, while Advocate Vuyani Ngalwana, who has represented Iqbal Survé’s Sekunjalo group, received R4.7-million.

Mkhwebane’s legal representative, Advocate Bright Tshabalala, received  R9.12-million. Then there is Mpofu’s R12-million, already mentioned.

Almost R4-million was spent by Mkhwebane defending her CR17 report, R3.4-million on sticking up for the Estina Dairy report, and R15-million in litigation against Minister Pravin Gordhan — by far the biggest chunk. She was defeated each time in court.

The committee heard that a number of cost orders against the PP have not been paid.

How democracy works

The Section 194 inquiry is unprecedented and it is the visible manifestation of Parliament’s holding to account of the head of a Chapter 9 institution who has been accused of serious misconduct.

In a post-Zondo South Africa, it is a key moment in accountability.

The DA, think of it what you may, has had its biggest impact using the courts and the Constitution of South Africa, from the Zuma “spy tapes” saga to this very inquiry and exposing Ngobeni.

Which is why Mpofu, Mkhwebane, Ngobeni and others claim this is a politically motivated “witch-hunt” that has been enabled by a Constitution that suits Western liberal values. 

That the DA is the official opposition represents a substantial constituency of South African voters and has every right to hold those in power accountable seems a bridge too far for the anti-constitutionalists.

But that is how freedom and democracy works.

Zuma and many of those cramped into the records of the 194 inquiry have blamed this very democracy for the woes of the country and, of course, their own personal and political disasters. They are mere victims of a cruel fate.

The Cheap Violins

When it comes to Julius Malema, leader of the EFF, the African Transformation Movement and Bantu Holomisa’s United Democratic Party, not much in the way of substance on any issue has been offered. 

Instead, insults, shouting, attempts at discrediting witnesses to the eventual devolution of speech itself have been the sideshow in their unwavering support of Mkhwebane.

This is what went down between Malema and ANC MP Xola Nqola this past week. Here, uncut, unscripted, unedited and word for word, is the exchange:

Malema: “There is no need for shouting … wena [Nqola], you are suffering from the mind of a peanut, a mind the size of a rat’s poo-poo. That is what you are suffering from.”

Nqola: “You are suffering from the mind of a cockroach.”

Malema: “A cockroach has got no mind. You and a cockroach are the same. That is why you don’t know.

“You are a small boy who has nothing to show in the history of politics except opportunism.

“You are here because you are hungry, you have nothing to offer. Poverty brought you here”.

For Mkhwebane, this is the fight of a lifetime. Should she manage to stretch the impeachment inquiry until October 2023, when her tenure ends, she is no longer accountable to Parliament. In other words, she will be unimpeachable.

Perhaps the pressing of criminal charges later would be an option, but this generation of South Africans who have lived through the “10 wasted years” will be long gone.

The committee will resume next Wednesday and adjourn on Friday until it will pick up from 28 November to 9 December with the intention of convening for closing arguments on 23 January 2023.

The adoption of a draft report will hopefully occur by 17 February, after which Mkhwebane will have 20 days to consider, before the committee adopts its report on 29 March. Well, that’s the plan.

Trashing Oliver Tambo’s Dream

What Zuma et al forget is that the genesis of the South African Constitution as we know it was the fruit of an initiative set in motion in the mid-1980s by ANC President Oliver Tambo.

Professor Nomalanga Mkhize, in her forward to Andre Odendaal’s superb “Comrade President - Oliver Tambo and the foundations of South Africa’s Constitution” (Penguin), writes that the book “sorts out reality from myth in the history of the making of the South African Constitution”.

The chief notion it challenges, she added, is “the idea that the Constitution was somehow a foreign-inspired concept that had little rooting in the African tradition, or in the past of the ANC’s form of Africanism”.

It is unlikely that those who have drank the RET Kool-Aid will read this seminal book. If they did, they would learn how forward-thinking intellectuals in the ANC (yes, there were some once) were able to see around political corners. 

Using the Freedom Charter as a guide, Pallo Jordan, Albie Sachs and others found a way to guarantee a constitutional democracy with a Bill of Rights that celebrates the dignity and freedom of the citizens in all their diversity of this country.

It is this that has been under attack and undermined. While the battle is not yet won, those who are opposed to accountable government have made themselves present and visible. DM168

This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R25.