By Paul Hoffman*

On 13 June 2023 the suspended Public Protector, Busisiwe Mkhwebane, called a media briefing, played two video tapes and released some ninety WhatsApp messages, alleged to have been exchanged between her husband and the late ANC MP Tina Joemat-Pettersson, to the members of the press who gathered in Sandton to observe and report on the spectacle. The materials laid bare contain prima facie indications of the latter seeking to solicit a R600,000 bribe from the former to make the impeachment proceedings pending against the Public Protector “go away”. There appears to be no other evidence actually implicating two bribe seeking co-conspirators apart from the say-so of Joemat-Pettersson, who is now beyond the reach of a subpoena and of the cross-examiner’s rapier. Mkhwebane admits that the cause of death of the apparently ailing MP is unknown at this stage but she is quick to ascribe it to the fault of the legislature, the executive and the judiciary by a process of reasoning that defies all logic.

The antipathy of the Public Protector toward the press was also not concealed during the engagement. Karyn Maughan, a veteran of many bruising encounters, came in for particular vitriol when she asked difficult questions about the admissibility of the materials laid bare during the briefing. It is lamentable that Dali Mpofu SC chose to intervene in the harassment of Maughan.

It was Maughan who first exposed the mendacity and incompetence of Mkhwebane. Back in January 2017, Maughan produced a leaked copy of a preliminary report signed by Mkhwebane, the existence of which the latter had denied to the complainant Accountability Now, much to the chagrin of Mkhwebane. This incident led to a complaint to the applicable oversight body – the Justice Portfolio Committee of the National Assembly. The complaint lays bare the instances of mendacity and lack of competence then in evidence in the Ciex matter. Mkhwebane had declined to account for her conduct by answering 13 straightforward questions that called for explanation of the more bizarre aspects of what she had done in the matter. Instead, she stoutly contended that she could “not investigate” herself, thereby inviting the complaint. Although the Committee studiously avoided dealing with the complaint in either the fifth or sixth parliaments, it is plain that Mkhwebane has not forgotten the incident and Maughan’s role in it.

It is also not without relevance that the final Ciex report of the OPP that Mkhwebane produced was set aside on review by ABSA Bank and the Reserve Bank in proceedings that Mkhwebane took on appeal to the Constitutional Court. There she was given short shrift and found herself on the business end of an adverse credibility finding that led to a personal punitive costs award and criminal proceedings for perjury and defeating the ends of justice against her.

It is also significant that Mkhwebane has studiously avoided ever answering the questions raised by Accountability Now in the January 2017 complaint. It is not her fault that the Committee has not done anything to investigate the complaint. Had it done so, the entire process of impeachment could have be disposed of more quickly, effectively and efficiently than has been the case. Conversely, the assurance given to Sally Burdett, the eNCA anchor, by Mkhwebane that she wishes to tell her side of the story rings hollow when the ducking and diving that went on in the Ciex matter is brought into focus. Had she ever genuinely wanted to tell her side of the story, one would have expected her to respond to the complaint lodged on 16 January 2017,  a step she has, until now, eschewed.

It is not only in the Ciex matter that the standards normally in place in the Office of the Public Protector (OPP) have dropped. On Mkhwebane’s watch there has been a failure to follow up on the reports by her predecessor, Thuli Madonsela, in which adverse findings were made against current Minister of Police, Bheki Cele regarding his role in the infamous police headquarters leases for the World Cup Soccer Tournament of 2010. The way in which the matter unfolded in described in detail here

Of relevance for present purposes is some of the content of a request made of the Office of the Public Protector (OPP) in 2019:

We are interested, as a complainant in the matter, in the outcome of that which is set out in section 21.7, 21.8 as read with section 22.2 of the report numbered 33 of 2010/11. In particular we require electronic copies of all reports received by your office from SAPS and the Minister of Police as specified by your office as part of the remedial action that the investigation required.

Our concern is that agreeing to lease premises using public money at about three times the going rate would appear to be prima facie corrupt, but nothing seems to have been done to address any possible criminality in the matter for want of sufficient evidence. The SAPS, or IPID, are surely well-equipped to investigate so simple a matter and to report back to the OPP on their progress.

You will recall that the Moloi board of inquiry into the fitness for office of the then National Commissioner of Police found him to be incompetent and dishonest. That board also recommended that a proper corruption investigation should follow, as it had not been empowered to subpoena the landlord and the relevant documentation concerning the excessive rate agreed in respect of rental of the leases.

The correspondence quoted from above was not responded to by Mkhwebane or anyone else in the OPP. The efforts of SAPS since 2010 in the matter have also come to nought.

An instruction of the National Director of Public Prosecutions, Shamila Batohi, given to the head of its Investigating Directorate, Hermione Cronje, in 2020 to investigate the matter has been ignored by the new head of the ID, Andrea Johnson, and the matter has instead been referred back to the Hawks by her. Not unexpectedly, the Hawks have made no progress in the investigation. An effort to get the OPP to regard the decision to get the Hawks to investigate their own cabinet minister as irrational has been rebuffed. Cele sails on with complete impunity, certainly the first minister of police anywhere to have been a former police commissioner dismissed for his dishonesty and incompetence.

If Mkhwebane has a story to tell around any of the matters raised above, she should be forthcoming.

It is more than a little concerning that the Justice Portfolio Committees in both the fifth and sixth parliaments have done nothing about holding Mkhwebane to account. This failure is symptomatic of the malaise in parliament that has been identified by the Chief Justice in his report on State Capture. The dominance of Luthuli House and the blurring of the lines between what is in the interests of the party and what serves the state are matters that need to be addressed if the type of inertia chronicled above is to be avoided in the future.

It is also unfortunate that the instruction given to the ID by the NDPP has not been acted on properly. While it is true that the “final responsibility” which the minister of justice exercises over the NPA can have a dampening effect on matters involving political “big fish”, the constitutional ideal is that the NPA should act without fear, favour or prejudice. The protracted investigation of the World Cup leases for police headquarters is not a shining example of discharging constitutional obligations “diligently and without delay” whether in the police, the NPA, the OPP or in parliament.

Mkhwebane is quick to demand accountability from others but slow to behave accountably herself.

*Paul Hoffman SC is a director of Accountability Now