Johannesburg – The Public Protector, Advocate Busisiwe Mkhwebane, appeared briefly in the Pretoria Regional Court in connection with three counts of perjury earlier this morning.
This follows summons that were issued by the Directorate for Priority Crimes Investigations (DPCI) in December 2020 after the Director of Public Prosecutions took a decision to prosecute and ordered that the Mkhwebane be arraigned.
It is alleged that Adv Mkhwebane lied under oath in November 2017 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 25 April 2017, whilst knowing that the declaration was false.
Further, on 26 April 2018 she 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.
In the affidavit she declared that she had a second meeting with the President on 07 June 2017 and the purpose of the meeting was to clarify President Zuma’s response to the provisional report, whilst knowing that the declared purpose was false.
In addition, on 5 June 2018 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.
She declared that she did not discuss the final report/new remedial action with President Zuma on 07 June 2017 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 Adv Mkhwebane when she assumed office.
On 20 December 2016, Mkhwebane sent a provisional report to various parties in the matter for them to respond to her preliminary finding that the SARB improperly failed to recover funds (R1,125 billion) from ABSA.
The parties were also requested to provide inputs regarding her proposed remedial action orders. The parties amongst others included the President of the Republic of South Africa (President), the SARB and ABSA.
In June 2017, the Public Protector published a final report in which she made the finding that the South African government had failed to implement the CIEX report and together with the SARB failed to recover R3.2 billion from Bankorp and/or 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 these review applications. In her capacity as the Public Protector, she deposed to an answering affidavit at Pretoria on 24 November 2017 to Mr Oscar Rikhotso of Maphosa Mokoena Attorneys.
On 16 February 2018, the Gauteng High Court handed down judgment in respect of the review applications. The Public Protector lost all three matters.
On 28 March 2018, the Public Protector applied to the Gauteng High Court for leave to appeal the judgment to the Supreme Court of Appeal in respect of some of the orders that it made. The application was dismissed.
On 30 April 2018, the Public Protector applied to the Constitutional Court for direct access or alternatively for leave to appeal. Adv Mkhwebane, in her capacity as the Public Protector, deposed to an affidavit in support of her application at Pretoria on 26 April 2018 to Ms Yingisani Nyambi of Adams & Adams Attorneys.
The SARB opposed the application and filed an answering affidavit by Mr Johannes Jurgens de Jager dated 15 May 2018. In reply to Mr De Jager’s answering affidavit, Adv Mkhwebane in her capacity as the Public Protector, deposed to a replying affidavit at Pretoria on 05 June 2018 to Mr Condred Kunzmann.
The matter was postponed to 25 March 2021 for the management and resolution of pre-trial issues. The investigation is done and the state is ready for trial.
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