Unanswered questions, Part One: Evidence of secret meetings with Jacob Zuma and SSA involvement unchallenged by Mkhwebane

12 Jul 2023

Suspended Public Protector Busiswe Mkhwebane has chosen to ignore more than 100 pages of questions from Section 194 Inquiry evidence leaders. When it came to her CIEX report, evidence leaders wanted to know how and why she recommended changing the Reserve Bank’s mandate.

There is little wonder suspended Public Protector Busisiwe Mkhwebane appears to have ghosted the 194 Inquiry as she faced a 119-page list of questions by evidence leaders seeking to clarify vast silences and gaps.

It is these questions, as well as damning evidence that has been led, that Mkhwebane has chosen to ignore and appears to have given up defending at the inquiry into her fitness to hold office for alleged misconduct and incompetence.

The chair of the historic Section 194 inquiry, Qubidile Dyantyi, announced this week that the multiparty committee might complete its work before its end-of-July deadline. It was, in other words, pushing on regardless.

So far, Mkhwebane has missed three deadlines to file oral and or written replies or submissions to sets of questions by committee members and evidence leaders.

Read more in Daily Maverick: Strike Three – Mkhwebane ghosts Section 194 impeachment probe while lawyers collect fees

She has repeatedly raised legal cliffhangers that have now left her new team of legal representatives, Chaane Attorneys, dealing with the fallout.

While not responding to a single request, Dyantyi said the firm had already drawn down R500,000 of the R4-million ringfenced for Mkhwebane.

Changes and alterations

On Mkhwebane’s CIEX “Lifeboat” report, a backdoor attempt at altering the mandate of the South African Reserve Bank, the country may never find out the Public Protector’s motives for concealing her meetings with former president Jacob Zuma and the State Security Agency (SSA) from court records.

Evidence has been led that there was close collaboration with the SSA and its former director-general Arthur Fraser on the CIEX Report. Also, Mkhwebane had had meetings with Zuma in relation to the re-investigation.

The complaint, noted evidence leaders, had been from the Institute for Accountability in Southern Africa (IASA) and “was not about the South African Reserve Bank’s (SARB) powers and mandate in general and did not arise from the manner in which SARB’s powers had been crafted, but from the non-implementation of the report prepared by CIEX in particular circumstances”.

Former Public Protector Thuli Madonsela had investigated the matter and Mkhwebane’s attempt to change the mandate of the SARB had “been irrelevant to the issue”, the committee’s legal team said.

“Adv Mkhwebane effected changes to this provisional report which differed in material respects from that which had been prepared by Adv Madonsela”.

They asked who exactly had been consulted in the making of these changes and where these changes had originated.

Shadows of the SSA

The committee sought clarity on her relationship with SSA agent Mahendra Moodley, who was part of a team working on the IT package for the Public Protector and who provided the text for Mkhwbane’s final remedial action recommendation to alter the SARB’s mandate.

Read more in Daily Maverick: Inside Busisiwe Mkhwebane’s State Security Agency-riddled Public Protector’s Office

“How did Adv Mkhwebane know Mr Moodley?”

Why was it she had believed Moodley to be “sufficiently knowledgeable and qualified or had the necessary expertise in order to advise on amending the Constitution to change the mandate of the Reserve Bank?”

Also based “on precisely what information at her disposal at the time did Adv Mkhwebane introduce Mr Moodley as an economist?” asked the evidence leaders.

Moodley had provided Mkhwebane with a one-page document setting out the text of the amendment of the Constitution “save for the change of the word “Cabinet” to “Parliament” included in the CIEX report as remedial action, “almost verbatim”.

The drill-down

The court record of what the evidence leaders repeatedly referred to as the “Lifeboat report” was missing transcripts of interviews with the SSA and Zuma, two sets of draft research on central banks, as well as emails from Mkhwebane referring to the SSA’s input and “an economist” in relation to the proposed amendment.

Ultimately evidence leaders sought from Mkhwebane answers on whether she had considered Judge Willem Heath’s SIU report at the time she had recommended her remedial action.

“If not, why not? Why were the meetings with the Presidency held on 25 April 2017 and 7 June 2017 not disclosed in the Lifeboat Report?

“Why were the meetings with the Presidency not recorded and transcribed? Why did Adv Mkhwebane instruct that they should not be recorded?

“Describe in full what was discussed at these meetings with the Presidency.

“Why did Adv Mkhwebane inform the CC [Constitutional Court] that she did not discuss the final report/new remedial action or the Presidency, when at the very least she discussed the new remedial action in respect of the SIU?

“Indicate precisely where in the Lifeboat Report ‘import of the Presidency’s submissions’ are dealt with.

“Why were the meetings with the SSA on 3 May and 6 June 2017 not disclosed in the Lifeboat Report, given the use of the document received from the SSA?

“Why were these meetings with the SSA not recorded and transcribed? Why did Adv Mkhwebane instruct that they should not be recorded?

“Describe in full what was discussed at these meetings with the SSA?

“What role would the SSA have to play in the recovery from what is alleged the Reserve Bank had given away ‘illegally’?

“Why would the meeting with the SSA have been classified, alternatively, why would the minutes or notes of the meeting be classified?

“What was intended by the phrase ‘meaningful socio-economic transformation’?

“How was this going to be achieved by the SARB?

“On what basis does Adv Mkhwebane have the power to make such a recommendation?”

You get the drift and why Chaane Attorneys might be reluctant to plunge right on in there.

In Part Two, we bring you unanswered questions on Mkhwebane’s CR17, Vrede Dairy and SARS reports. DM

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South Africa

Changes and alterations

Shadows of the SSA

The drill-down