The Public Protector, Advocate Busisiwe Mkhwebane, appeared in the Pretoria Regional Court on Thursday morning [January 21] in connection with three counts of perjury for lying under oath in November 2017.
Advocate Mkhwebane allegedly lied when she unlawfully and intentionally deposed to an answering affidavit under oath in a Gauteng High Court review application. In the affidavit, she declared that she only had one meeting with President Jacob Zuma, which was on April 25, 2017, whilst knowing that the declaration was false.
She also unlawfully and intentionally deposed to an affidavit under oath in support of her application for direct access or alternatively for leave to appeal to the Constitutional Court on April 26, 2018, when she declared that she had a second meeting with the President on June 7, 2017, to clarify Zuma’s response to the provisional report, whilst knowing that the declared purpose was false.
Her final count of perjury is for when she unlawfully and intentionally deposed under oath to a replying affidavit in her application for direct access or alternatively for leave to appeal to the Constitutional Court on June 5, 2018, when she declared that she did not discuss the final report/new remedial action with Zuma whilst knowing that it was not true.
This is in connection with a matter that arose from a complaint that was submitted to the Office of the Public Protector in respect of a report by CIEX, an asset recovery company in the United Kingdom, and a subsequent SIU enquiry pertaining to money owed by ABSA and other companies to the South African Reserve Bank (SARB).
The debt originated from the so-called “lifeboat” lending agreement between the Reserve Bank and the defunct Bankorp that was taken over by ABSA.
The investigation was initially conducted by the previous Public Protector and taken over by Mkhwebane when she assumed office. On December 20, 2016, she sent a provisional report to various parties to respond to her preliminary finding that the SARB improperly failed to recover funds of R1.125-billion from ABSA.
The Public Protector directed that the chairperson of the Parliamentary Portfolio Committee take steps to amend section 224 of the Constitution in order to strip the SARB of its primary objective to protect the value of the currency and to change the consulting obligation with the Minister of Finance. It also ordered that the 1998 SIU Proclamation needed to be reopened and amended.
The SARB launched an urgent application for the high court to review the findings of the Public Protector pertaining to the amendment of its mandate. This review application was not opposed by the Public Protector and the remedial action was set aside.
The SARB launched a second review application and requested the high court to review and set aside the remedial action pertaining to the reopening and amendment of the 1998 SIU Proclamation. ABSA, the Minister of Finance and Treasury instituted separate review applications.
All three review applications were combined and the Public Protector opposed each one. On February 16, 2018, the Gauteng High Court handed down judgment in respect of the review applications. The Public Protector lost all three matters.
She applied to the Gauteng High Court for leave to appeal the judgment to the Supreme Court of Appeal on March 28, 2018, but the application was dismissed.
The SARB opposed the application and filed an answering affidavit by Mr Johannes Jurgens de Jager dated May 15, 2018. In reply to Mr De Jager’s answering affidavit, Mkhwebane deposed to a replying affidavit at Pretoria on June 5, 2018, to Condred Kunzmann.
The matter was postponed to March 25, 2021, for the management and resolution of pre-trial issues. The investigation is done and the state is ready for trial.