Anti-corruption pressure group Accountability Now has laid charges of perjury and defeating the ends of justice against Public Protector Busisiwe Mkhwebane; and, simultaneously, lodged a maladministration complaint against her with the very office she heads.
The group reportedly sent a letter of complaint to the Office of the Public Protector (OPP) and laid a criminal complaint with the police, which included a supporting affidavit from Accountability Now director, Paul Hoffman, SC.
“The criminal complaint has been given Ocean View CAS no 09/08/2019 and will be investigated by the Hawks in Pretoria. As she cannot investigate herself, the maladministration complaint will have to be investigated by her deputy (Kevin Malunga),” a statement from Accountability Now reads.
“On July 15, 2019, the Constitutional Court handed down a judgment in which the majority finding included serious criticisms of the honesty and integrity of the Public Protector, advocate Busisiwe Mkhwebane,” reads Hoffman’s affidavit.
“While the matter was in the nature of civil proceedings the findings of fact in relation to dishonesty, deliberate misrepresentation of facts and an attempt to mislead the courts all involve criminal activities on the part of the accused.”Director, Accountability Now – Paul Hoffman, SC.
“While the matter was in the nature of civil proceedings the findings of fact in relation to dishonesty, deliberate misrepresentation of facts and an attempt to mislead the courts all involve criminal activities on the part of the accused.
“It would appear from the said findings that the accused is guilty of perjury and defeating the ends of justice,” Hoffman’s affidavit continues.
Hoffman’s letter to the OPP references the Legalbrief summary of press reports on August 5, 2019.
“If the reports are accurate, the office has a huge maladministration problem in the form of advocate Busisiwe Mkhwebane’s utterances and actions as set out in the reports,” Hoffman said.
He asked the OPP to verify the accuracy of the remarks attributed to Mkhwebane in the Legalbrief summary.
“If they are accurate, an investigation of the way in which the advocate is leading the office is required and appropriate remedial action in a form allowed by law is required.”
“Her failure to give implicated parties the opportunity of setting out their side of the story and suggesting other or no remedial action is the basic cause of the mess in which the advocate has placed herself and the office she leads,” Hoffman added.
“It is not sufficient to await the outcome of the three other processes she is facing; immediate steps to correct the way in which the office is administered are required so that it can recover from her maladministration diligently and without delay.”
Last month, Accountability Now asked the Legal Practice Council to strike Mkhwebane off the roll of advocates for perjury and for attempting to mislead the court.
“An advocate lying under oath in any court is a hanging offense as far as the fitness and properness of advocates to be on the roll of advocates. I don’t think that the Legal Practice Council will have any difficulty with its deliberations on the matter from a point of view of principle. It is not appropriate that advocates lying to courts be allowed to remain on the roll of advocates,” Hoffman stated.
The move came after the Constitutional Court agreed with the Gauteng High Court in Pretoria that her entire ABSA/Bankorp investigation was flawed, and that Mkhwebane had not been honest during her investigation.
The High Court set aside her Bankorp-CIEX report, which stated ABSA had to repay R1.125bn, in February.
The National Assembly’s Portfolio Committee on Justice will also examine Mkhwebane’s suitability for office after the DA requested such a probe.
Several civil society and business organisations have urged that this inquiry be expedited.
As the pressure mounts, Mkhwebane has complained of a smear campaign against her because she is investigating “untouchables.”
Her most recent findings are against Public Enterprises Minister Pravin Gordhan, relating to the so-called “rogue unit” at the South African Revenue Service, and President Cyril Ramaphosa, relating to the donation of R500 000 from Bosasa boss Gavin Watson for his 2017 ANC presidential campaign.
Both the president and the minister are taking her findings on review and have been critical of Mkhwebane in their court papers.