The roast of Busisiwe Mkhwebane
Public protector Busisiwe Mkhwebane has acted as if neither the law nor the laws of time apply to her, the high court in Pretoria heard this week.
She hid evidence, lied, plagiarised and misled, acted in an unfair and biased manner, ignored inconvenient facts and substituted government policy with her own opinion. And that is not even counting the time she tried unilaterally to rewrite the Constitution.
On Thursday morning, advocate Tembeka Ngcukaitobi delivered one final criticism of Mkhwebane on behalf of Finance Minister Malusi Gigaba. Mkhwebane, he said, had not even bothered to read a contract properly before she used it as the basis for a course of action that “sanctions and directs the executive to interfere” with the critical independence of the Reserve Bank.
But, coming as it did at the tail end of two-and-a-half days of far more serious — and personal — accusations, that accusation barely lifted an eyebrow.
Mkhwebane had been due to defend her decision that R1.125‑billion she said was unlawfully gifted by the Reserve Bank to Bankorp, later acquired by Absa, should be recovered by the state. Instead, she found herself fighting for her professional life as the two banks and Gigaba accused her of malfeasance and dishonesty so grave that it could cost her her job.
Mkhwebane, the other parties said, had not only made a series of very serious factual and legal mistakes in her analysis of an apartheid-era bailout of Bankorp, she had also lied and cheated along the way.
This, the Reserve Bank insisted on Wednesday and Thursday, obliged the court to issue a declaratory order that Mkhwebane had breached the Constitution.
What happens then is out of the hands of the courts, said Reserve Bank advocate David Unterhalter.
“If this court pronounces upon our abuse of office cause of action by way of declaratory relief, then it would be for the other branches of government, the legislature in particular, [to decide] what to make or do with such a declarator,” he said.
Mkhwebane’s team saw only one interpretation of such a statement. It was clear the Reserve Bank sought “to prepare the ground for presumably the removal of this individual who occupies the position of public protector”, said her advocate, Paul Kennedy.
“The court should not be part of any such game or strategy or approach.”
But a court judgment — with or without a declarator — that endorses any one of the multitude of serious allegations of dishonesty made against Mkhwebane could trigger court proceedings to have her struck off the roll as an advocate or a process in Parliament to review her appointment.
Mkhwebane had intentionally withheld from the government crucial documents it had asked for, said Ngcukaitobi. She then failed to explain why she had done so, forcing the court to assume it was “for improper reasons”, he said.
Mkhwebane not only misled the court in a sworn affidavit, said Absa advocate Gilbert Marcus, she also did so in a fashion that deceived even her own advocates — because that could be the only explanation for why her advocates misled the court.
Asked bluntly whether she had conspired with the State Security Agency (SSA) against the Reserve Bank, Mkhwebane had no answer, said advocate Kate Hofmeyr, who acted for that bank alongside Unterhalter.
Her failure to explain herself meant it had to be assumed she was using her office to the detriment of the Reserve Bank, a fellow constitutional body.
Such allegations amount to a “very serious and personal attack against the integrity” of Mkhwebane, Kennedy countered on her behalf. Yet he offered no explanation of the meeting with the SSA, or with Absa foes Black First Land First, or any defence against some of the more eye-popping allegations against his client.
Instead, he focused on arguments that there was not sufficient evidence to convict Mkhwebane of wrongdoing.
If the court were to declare Mkhwebane had breached the Constitution, it would first have to show she had acted in bad faith, said Kennedy.
Because she had genuinely believed she was doing the right thing, that is impossible, he maintained.
“The fact that somebody fails to meet a high standard does not mean, necessarily or logically, that there was abuse of power,” said Kennedy.
And the mistakes she did make, such as not providing documents and not recording meetings, Kennedy held, could be the result of a series of mistakes by Mkhwebane and her legal team.
The assertions were met with furrowed brows from the Bench.
The R1.125‑billion bailout seemed mostly forgotten.
Judgment in the matter would be delivered in late January or early February, presiding Judge Cynthia Pretorius said.