Advocate denies he has political agenda against public protector

By Zingisa Mkhuma and Manyane Manyane

THE MAN who laid criminal charges of perjury against Public Protector Busisiwe Mkhwebane and subsequently wrote to President Cyril Ramaphosa asking him to suspend her has denied that he is furthering a political agenda against her.

Advocate Paul Hoffman, who has a history of laying complaints against Mkhwebane, has also poured cold water on suggestions that he implored the president to push out Mkhwebane as a pre-emptive strike aimed at paving the way for her removal by Parliament, which is scheduled to hold an inquiry into her fitness for office in the new year.

This came as Mkhwebane confirmed on Friday that she would co-operate and appear in court on January 21 in connection with perjury charges laid by Hoffman, the director of pressure group Accountability Now, which resulted in the National Prosecuting Authority (NPA) serving the public protector with a summons.

According to the charge sheet, Mkhwebane faces three charges of perjury for allegedly lying under oath about the number of times she had met with former President Jacob Zuma during her investigation into the SA Reserve Bank and Absa. Two other charges relate to her meeting with Zuma again in June 2017 and she was alleged to have lied about the contents of their discussions on that day.

Denying any political agenda, Hoffman told the Sunday Independent that Mkhwebane should be suspended for the sake of protecting the reputation of the Office of the Public Protector (OPP). He added that Ramaphosa had the discretion to exercise his power “on the basis of prevailing circumstances”.

“The suspension would be precautionary in nature and should be imposed to protect the reputation and integrity of the Office of Public Protector, which should obviously not be led by a person facing criminal charges. The criminal charge is based entirely on the findings of the ConCourt,” said Hoffman.

“The suspension is precautionary and serves the interests of the reputation and probity of the OPP. The PP is offside for her lies both in court (again in Sars matter due to her accepting bad advice from Moody SC) and in her interaction with Accountability Now.”

Ramaphosa’s acting spokesperson, Tyron Seale, confirmed that the president received Hoffman’s letter.

“The Constitution is clear on the processes related to the appointment, suspension or removal from the Office of a Public Protector. There is no decision in this regard,” said Seale.

In a statement released on Friday, Mkhwebane’s office said the public protector would co-operate with the court even though she viewed Hoffman’s request for her suspension as being typical of him and part of a smear campaign designed to get her removed.

“It is not the first time that advocate Hoffman SC has sought to nail the public protector. In July 2019, he laid a complaint with the Legal Practise Council to have her struck off the roll of advances. In March 2020, the Gauteng Division of the High Court in Pretoria dismissed his application for a declaratory order that the public protector was unfit to hold office,” read part of the statement.

“The public protector views these as being characteristic of advocate Hoffman SC, who, in 2013, unsuccessfully pursued the impeachment of the chief justice over the comments that the chief justice had reportedly made in respect of the transformation of the judiciary. This led to a complaint of professional misconduct being lodged against advocate Hoffman SC with the General Council of the Bar.”

The statement added that Mkhwebane was confident she would be cleared by the court, adding that Hoffman’s charges were “symptomatic of a desperation to find fault”.

Addressing a function held in Pretoria on Thursday evening to celebrate the first clean audit achieved by the Office of the Public Protector over the past 25 years, Mkhwebane vowed to continue doing her work without fear or favour regardless of all the attacks, threats of arrest and accusations of perjury.

She urged her staff to remain undeterred and thick skinned in the wake of unfair criticism of their investigations and reports.

“We have seen the attacks that seem to be aimed at diminishing this office. At any given time, we weather one storm after the other, and are perpetually in the eyes of the storm. Make sure in the midst of the storm, we excel more,” Mkhwebane said.

“You have seen this movie before, and I think you have developed a thick skin. So, let’s soldier on and fight this battle. Let us remain focused and avoid distractions, for our many people in our country are yet to see the fruits of democracy.”

Mkhwebane also defended her track record, saying the reports of her predecessors were also criticised by politicians, civil society organisations, the courts and the media because it comes with the territory. However, they were relatively less criticised because, at the time, there was no Constitutional Court order which transformed remedial steps to the status of a high court order, she added.

“I am told that long before my arrival, there were threats of arrests, accusations of perjury as well. It’s not the first time there’s criticism of shoddy workmanship on investigations. So it pains me, not because I am the target, but because it’s your work that is being unfairly criticised. You do all the groundwork, you interview witnesses, you write to me requesting that we subpoena witnesses, you analyse this evidence which you have collected, you interpret it, you draft the Section 79 notices, and you all prepare the reports after receiving responses from the people whom we are investigating.”

Mkhwebane said that she had been “bashed” and “called all sorts of names” for defending the work of her staff. She added that “much is made of” the fact that some reports have been reviewed and set aside by the courts even though about five of the 137 reports have been affected.

Delivering a keynote address at the same gathering, economics Professor Chris Malikane said Mkhwebane was a victim of a political and legal onslaught orchestrated by white monopoly capitalists and their agents whose corruption and maladministration her office has exposed. He said Mkhwebane was being subjected to “vitriolic attacks for standing on the side of the truth”.

“While you are still in office PP, the option for white monopoly capital is to bully, threaten, and instil fear regarding which matters to investigate, relating to who etc, and which not to investigate. The act gives you a discretion to pick and choose which matters to pursue.

“You could have chosen matters that would align the office within the general framework of white monopoly capital interests. And in so doing, you would have found affirmation from components of the state machinery. You would have received affirmation from the capitalist media, affirmation from the judiciary, cooperation from the executive and a standing ovation from the legislature,” Malikane said.

“We know that at the North Gauteng High Court there are issues whose outcomes can be predicted and there are sections which cannot lose based on judgments the logic of which as ordinary members of the public we cannot understand. We see inconsistencies in the application of principles in the judgments.”

According to the first charge against Mkhwebane, she “unlawfully and intentionally under oath deposed to an answering affidavit in Gauteng High Court review application, wherein she declared that she only had one meeting with the president which was on April 25, 2017, while knowing that the declaration was false.”

The second charge accuses her of having “unlawfully under oath deposed an affidavit in support of her application for direct access in terms of Rule 18 (1) or alternatively for leave to appeal in terms of Rule 19 (2) of the Constitutional Court, wherein she declared that she had second meeting with the president on June 7, 2017, and that the purpose thereof was to clarify the president's response to the report, while knowing that the purpose declared was not correct.”

In terms of the last charge, the public protector “unlawfully and intentionally under oath disposed to a replying affidavit in her application for direct in terms of Rule 18 (1) or alternatively leave to appeal in terms of rule 19(2) of the Constitutional Court, wherein she declared that she did not discuss the final report/new remedial action with the president on June 7, 2017, while knowing that it was not true.”

NPA spokesperson Sipho Ngwema said: “The NPA, through the Director of Public Prosecutions in Pretoria, took a decision to prosecute, after carefully assessing the evidence presented by the Hawks, in line with the prosecution policy and the law.”

The Absa matter came in the spotlight in 2010, when a complaint was submitted to former public protector Thuli Mandosela after a report conducted by CIEX into the money owed by the bank and other companies to the SARB. The debt originated from what was dubbed as a “lifeboat” agreement between the SARB and the now-defunct Bankorp, which was taken over by Absa in the 90s.

Mkhwebane took charge of the investigations in 2016 and published her final report ordering SARB to recover R3.2 billion from Absa. The report was taken on review and set aside by the High Court in Pretoria, which ordered that Mkhwebane personally pay 15% of the legal bill to the SARB. On February 16, 2018, the high court handed a judgment against the public protector’s findings. She appealed, but her application was dismissed.

Mkhwebane then approached the Constitutional Court. The SARB opposed her application.