Public protector ‘tampering with evidence’ ahead of review

Public protector Busisiwe Mkhwebane or her lawyers, or both, are “tampering with the record” of an investigation ahead of a court review of her findings, an attorney told the high court in Pretoria this week.

Those allegations are not only unfounded but malicious, Mkhwebane fired back.

In an affidavit filed on Wednesday attorney Hugh Eiser also alleges that Mkhwebane has deliberately delayed in providing the documents she used to make findings on related to the handling of the money of the Bapo bo Mogale tribe, in a report he is challenging.

Last week the Reserve Bank and Absa each separately said Mkhwebane had failed to provide a complete record in order for them to challenge her findings on a report dealing with allegations on an apartheid-era bailout made by UK company Ciex.

Mkhwebane released the Bapo bo Mogale and Ciex reports on the same day in June this year.

While the two banks said they had received a partial and confused set of documents from Mkhwebane, Eiser said he had received none whatsoever, and suspected that it was in order to tamper.

According to Eiser’s court documents, on September 8 the law firm representing Mkhwebane said it had received the documents Eiser wants. “We have since Thursday 7 September had the opportunity to actively peruse the contents of the documents and have noted a few concerns in respect of the contents thereof,” Mkhwebane’s lawyers wrote. They said the firm had arranged a meeting with the public protector to discuss those concerns.

Eiser responded with a warning.

“We cannot understand why it is necessary for you to consult with your client, except to tamper with the record,” he wrote in return. “The most serious of consequences will follow for you and your client if any tampering occurs.”

On Wednesday Eiser asked the court to order Mkhwebane to personally guarantee that no document “has been removed or in any way altered or tampered with”.

As Eiser has not yet seen the records his allegation is not reasonable, Mkhwebane’s spokesperson Cleopatra Mosana said this week. Eiser’s allegations are “grossly unfounded, malicious and defamatory to the character of the Public Protector.”

“If there is an allegation to be made of tampering, it would be best made once Mr Eiser is in possession of the record”, which will be delivered on Monday,” Mosana said.

Eiser was peripheral figure in Mkhwebane’s report that found that up to R243-million in mining royalties belonging to some 40 000 members of the Bapo bo Mogale could have been spent irregularly. She found that some of that was spent on a palace that saw a budget balloon to three times its original size.

On Eiser, the public protector found that, after years of being paid large amounts by companies such as Lonmin mining platinum and chrome on its land, the Bapho ba Mogale community had roughly R500,000 in its account in April 2016. Part of the reason for that, Mkhwebane suggested, was possibly “exorbitant” legal fees paid to law firms, including Eiser’s. Those fees must be referred to the Law Society to be assessed for fairness, Mkhwebane ordered.

In his application to review that finding Eiser said he had spent a decade acting for the community in a series of complex legal and financial matters, and prevented it from being robbed blind by various parties, at fees that were “eminently reasonable” in the context.

Eiser has a separate claim before the high court for R7-million he says the Bapo bo Mogale owe him in fees but have refused to pay.

Eiser said he could have demonstrated to Mkhwebane that she was wrong but never got the opportunity to do so because he only learnt of her investigation after she had published her final report. She had reached her findings and ordered remedial action “based on deliberately self-inflicted ignorance,” Eiser said, closely echoing similar claims by Absa.

Mkhwebane’s office this week said she had not made any findings against Eiser, only “an observation” and so had not owed him a hearing before publishing her report. She had simply referred his fees to checking.

“Mr Eiser will have an opportunity to defend or respond to the Law Society of South Africa during the assessment and verification of the fairness of his legal fees,” said Mosana.

Mosana confirmed that Mkhwebane is facing 22 “active” judicial review application of reports by her office, but that only two of those reports, that on the Ciex matter and the Bapo bo Mogale cash, were issued by Mkhwebane. The other 20 date from the term of Mkhwebane’s predecessor Thuli Madonsela. 

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Phillip De Wet
Guest Author

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