Advocate Busisiwe Mkhwebane’s acquittal on perjury charges has reopened the factual foundation of one of the most damaging findings in Parliament’s report recommending her removal: that she deliberately gave dishonest accounts under oath about meetings with former president Jacob Zuma during the Absa-Bankorp investigation.
The Section 194 Committee chaired by Qubudile Dyantyi treated disputed affidavits, handwritten notes and witness evidence as proof of intentional dishonesty. The criminal case built around the same sworn versions has now ended in her favour after the State closed its case and she was discharged without testifying.
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That makes the court outcome newly relevant to how the committee’s strongest character finding is now understood. Mkhwebane was acquitted in the Pretoria Magistrates Court after her lawyers brought a section 174 discharge application. The charges flowed from the 2019 Constitutional Court judgment over her Bankorp report and differing versions about meetings with Zuma during the Reserve Bank investigation.
Same evidence, different result
The overlap was acknowledged in Dyantyi’s report.
Mkhwebane objected to former Public Protector investigator Tebogo Kekana testifying because he had also supplied a statement in the criminal perjury prosecution.
The Committee recorded that Kekana’s statement “covered some of the same territory as his evidence before the committee”.
It rejected her double-jeopardy argument, saying Parliament was not conducting a criminal trial. But it expressly accepted that “a criminal court is likely to consider some of the same evidence that the S 194 Committee considers”.
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That shared evidence included Mkhwebane’s affidavits, Kekana’s handwritten notes, his evidence about the June 7, 2017, Presidency meeting and the dispute over whether new remedial action involving the Special Investigating Unit was discussed.
The Committee said Mkhwebane’s sworn denial that she discussed the final report or new remedial action was contradicted by Kekana’s notes and testimony. It concluded that the impression created by her affidavits was “false”.
From contradiction to dishonesty
The committee said Mkhwebane failed to give a “full, frank and honest account” of her meetings with the Presidency and State Security Agency.
It then crossed from contradiction into culpability, finding that she acted “dishonestly” by failing to give the courts an honest account of those meetings and by misrepresenting her reliance on economic experts.
“All indications are that Advocate Mkhwebane acted intentionally and, indeed, deliberately,” the report concluded.
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It reasoned that she controlled the investigation, determined what entered the report and personally deposed to the disputed affidavits.
Advocate Dali Mpofu relied on the minority Constitutional Court judgment of then chief justice Mogoeng Mogoeng and acting justice Goliath, arguing that the majority’s inference of dishonesty was not the only one available.
Mogoeng said the Public Protector’s disclosure of her notes cut against an inference of deception. He said “a deceitful or dishonest functionary would not herself have exposed ‘her lie’” and that disclosure of notes and meeting details undermined the conclusion that she was dishonest or deceitful.
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Mpofu told members that this was “the perspective that we have been finding to be missing” from the evidence leaders’ treatment of the judgements.
Mogoeng said Mkhwebane had no legal obligation to record and transcribe meetings with the President or SSA and warned against using departures from office practice as proof of bad faith.
On bad faith, he said it required specific intent to deceive, harm or prejudice, or gross recklessness so serious that absence of good faith could reasonably be inferred.
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The Section 194 Committee preferred the majority judgment.
It said its evidence supported the majority’s conclusion that Mkhwebane failed to give a full, frank and honest account and later stated there was no evidence warranting departure from the Constitutional Court majority.
The Committee nevertheless made its own finding on intention, saying Mkhwebane exercised full agency over the investigation, report and affidavits. It also created a fallback, saying that if intention were not established, her conduct was reckless and grossly negligent.
Criminal weight falls away
That distinction is now central after the Pretoria Magistrates Court discharge.
The criminal case tested whether the disputed sworn versions could sustain perjury charges. After the State presented its evidence, the court granted Mkhwebane’s discharge application and acquitted her.
The result removes the criminal prosecution that existed alongside Parliament’s inquiry and puts pressure on the part of Charge 1 that converted contradictions into intentional dishonesty.
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Other Charge 1 findings remain separate. The Committee also found procedural unfairness, irrationality, failures to hear affected parties and improper SSA involvement in remedial action.
But dishonesty was not peripheral. The Committee said Mkhwebane failed to observe “scrupulous honesty” in court and relied on that finding when concluding she committed misconduct in the Lifeboat investigation, report and litigation.
The contradiction is now unavoidable: Parliament concluded the overlapping evidence established deliberate dishonesty, while the criminal prosecution arising from the disputed sworn accounts ended before Mkhwebane was required to answer the State’s case.
- Advocate Busisiwe Mkhwebane was acquitted on perjury charges related to her sworn accounts about meetings with former president Jacob Zuma during the Absa-Bankorp investigation.
- The Section 194 Committee found that Mkhwebane acted "dishonestly" by giving false affidavits and misrepresenting her reliance on economic experts, a finding now challenged by the criminal acquittal.
- The criminal case ended when the State closed its case, and Mkhwebane was discharged without testifying in the Pretoria Magistrates Court.
- The Committee rejected Mkhwebane’s double-jeopardy argument and relied on the majority Constitutional Court judgment that she failed to give a "full, frank and honest account."
- The court discharge undermines the Committee’s finding of intentional dishonesty, though other procedural fairness and conduct issues against Mkhwebane remain separate.
