Advocate Dali Mpofu.
“Have you lied under oath before?”
The snide question from advocate Dali Mpofu to Tebogo Kekana on Tuesday, as he cross-examined the former investigator in the office of the public protector, summarised his efforts to discredit Kekana’s testimony that Busisiwe Mkhwebane had taken instructions from the State Security Agency (SSA).
Mpofu was challenging Kekana’s evidence to parliament’s section 194 inquiry weighing whether to recommend Mkhwebane be impeached. Kekana said she had been spoon-fed proposals by intelligence officials to change the mandate of the South African Reserve Bank (SARB).
Mpofu repeatedly put it to Kekana that handwritten notes of a meeting with former SSA director general Arthur Fraser and colleagues James Ramabulana and Maiendra Moodley suggested that the conversation had not, as he maintained, focused on the vulnerability of the Sarb in the apartheid era, but rather in the present.
It was a confusing tack. The CIEX-Bankorp investigation in question centred on Bankorp’s apartheid-era bailout by the Reserve Bank. It would arguably be less compromising for Mkhwebane had the meeting centred on the position of the central bank in the past.
The Bankorp probe followed a request from Accountability Now in 2010 for an investigation to establish whether the government had failed to act on a report by CIEX, a private British intelligence company, on the Reserve Bank’s bailout of Bankorp.
Mkhwebane concluded that Absa, which later acquired Bankorp, had to repay R1.125-billion. She went further still to direct that the Constitution be amended to allow the Reserve Bank’s mandate to be changed to one of promoting economic growth and ensuring the “economic well-being” of citizens.
In 2018, the Pretoria high court set aside the report, following review applications by both Reserve Bank and Absa, and found that Mkhwebane had exceeded her powers.
The ruling is one of several that have been considered prima facie evidence of misconduct on her part, and she is facing perjury charges for putting forth what the constitutional court has termed “a number of falsehoods” during the review litigation.
The constitutional court found that her explanation as to why she would discuss the vulnerability of the bank with members of the SSA was incomprehensible. In the course of the review litigation, counsel for the SARB argued that the mere fact that Mkhwebane was discussing “the vulnerability” of the central bank with intelligence agents was cause for concern.
Her office countered that the meeting was intended to inquire about SSA’s contract with CIEX, although Kekana’s handwritten note from the 6 June meeting, which became part of the court record, contained the catchwords “independence” and “constitutional obligations”.
Kekana took notes of what transpired in the meeting but was soon told by Mkhwebane to stop. It was to these cryptic notes that Mpofu returned to suggest that because verbs were in the present tense, his client was somehow in the clear. He concluded his cross-examination by telling the committee he would argue that nothing Kekana had said could be deemed credible.
He had put it to Kekana that he was fired for dishonesty, a claim the witness disputed, saying he was suspended on the basis that he had spoken too freely to lawyers involved in the review case.
“The information I shared with the attorneys was in relation to the amendment of the Constitution, that’s what I recall advising them, and also indicating to them that we received a note from the SSA with the changes.”
In response to questions from ANC deputy chief whip Doris Dlakude, he said Mkhwebane had given no reason for why she did not want the meeting with the SSA recorded or minuted.
“From my knowledge the information that was discussed in that meeting was not classified … the discussions mostly centred around the Reserve Bank, pre-democratic era … She just did not want it included in the record,” Kekana said.
Likewise, he said he was given no explanation for her instruction that the investigators probing the Estina dairy farm project ignore information in the Gupta Leaks emails and excise any adverse findings against politicians.
“Depending on what we would find, chair, that was going to determine as to whether that information would assist us or not … there was mention of Vrede in the Gupta links and if there was any information that was relevant, we were definitely going to use that information.”
He testified that he knew references to politicians in the report on the dairy farm scam were removed because he was involved in doing so at Mkhwebane’s instructions.
On Monday, he testified that Mkhwebane said she did not care if the report were taken on review as a result. It was, and was set aside.