Monday’s witness, ex-Public Protector senior investigator Tebogo Kekana, publicly turned whistle-blower and, under oath, talked about the protected disclosure statement he had deposed in December 2019.  

Read in Daily Maverick: Exclusive: Meet the whistle-blower taking a stand against Public Protector Busisiwe Mkhwebane

That affidavit had lifted the lid on how the 17 May 2017 email — in which Public Protector Busisiwe Mkhwebane said she had “asked SSA (State Security Agency) to provide input and economist” to change the South African Reserve Bank’s (SARB’s) constitutional mandate — had not been disclosed as part of the court review of the Absa Bankorp report.

“If it was part of the record, there would have been a media outcry. So it wasn’t included,” Kekana told MPs, adding that he had copied all of the investigation file and handed it over to the then senior legal manager.

As far back as August 2017, this Public Protector report — which also orders Absa to repay R1.125-billion — has been declared invalid and set aside after the SARB, Absa, National Treasury and then National Assembly Speaker Baleka Mbete, took it on judicial review.

Read in Daily Maverick: Reserve Bank and Parliament trump Public Protector as court sets aside remedial action to change Constitution

The remedial action of amending the Constitution by motion in the House, from the justice committee chairperson — it’s not how it’s done, as 17 previous amendments show — was acknowledged as a mistake by Mkhwebane in the court proceedings, and was dropped.

Litigation continued until July 2019 when the Constitutional Court upheld the punitive personal cost order against Mkhwebane — that’s how judges signal their dim view of what’s presented — and also upheld findings that Mkhwebane had acted in bad faith, was not honest about her engagements during the probe — which was described as flawed — and had exceeded her powers.

For this reason, Kekana, and the Absa Bankorp report, are part of the parliamentary Section 194 committee inquiry into the removal from office of Mkhwebane on grounds of misconduct and/or incompetence.

SSA and amending the Constitution

On Monday, MPs heard how, in early June 2017, SSA officials handed over a one-page note on amending Section 224 of the Constitution in a brief meeting with the now suspended Public Protector.

“The primary object of the South African Reserve Bank is to promote balanced and sustainable economic growth in the Republic, while ensuring that the socio-economic wellbeing of the citizens are protected,” was what spooks representatives James Ramabulane and Mai Moodley, described as an economist, submitted.

That’s to replace Section 224(1) of the Constitution. The SSA proposed Section 224(2) should also be amended to change consultations between the SARB and the Cabinet minister responsible for it, the finance minister, to read “…between the Bank and the Cabinet to achieve meaningful socio-economic transformation”.

And after changing Cabinet to Parliament, that’s exactly how it appeared in the final report, as remedial action. In bold.

The Constitution stipulates the SARB’s primary focus is to “protect the value of the currency in the interest of balanced and sustainable economic growth in the Republic”.

The final 19 June 2017 Absa Bankorp apartheid-era bailout report was published just ahead of the July 2017 ANC policy conference — and it put wind under the wings of the so-called radical economic transformation faction (RET) efforts towards nationalising the SARB. The policy conference agreed to take this nationalisation to the December 2017 national elective conference, where it was adopted as ANC policy. 

Rand wobbles

Crucially, that Public Protector Absa Bankorp report led to a fall in exchange rates — the rand plummeting from R12.79 to R13.05 against the dollar — and saw the selling off of R1.3-billion worth of South African government bonds. And the rand wobbled again in the wake of the ANC policy conference proposal to nationalise the Reserve Bank.

Read in Daily Maverick: Reporter’s Parliamentary Diary: Clear uncertainties or we remain in recession, says SARB’s Lesetja Kganyago

It’s just about as plain as it can get, how the governing party’s politicking and politics can fracture the economy.

Fraser and Mahlobo

Questions remain on why the SSA would meet Mkhwebane — on 3 May 2017, including former spooks boss Arthur Fraser and then state security minister David Mahlobo, both known close allies of then president Jacob Zuma — and seemingly push for a constitutional amendment in line with the ideology and politics of the so-called RET grouping, for the nationalisation of the SARB.

Mkhwebane’s advocate Dali Mpofu (SC), in cross-examining Kekana, argued that the meeting with Mahlobo was just a meet-and-greet. And that Mkhwebane was entitled to meet the SSA as part of her probe, just as her predecessor Thuli Madonsela had met Billy Masethla, the boss of the SSA’s predecessor, the National Intelligence Agency.

Madonsela became Public Protector in October 2009 for a constitutionally limited, non-renewable, seven-year term. Masethla had been dismissed in March 2006 over a breakdown in relations with then president Thabo Mbeki. That was after an investigation by then Inspector-General of Intelligence, Zolile Ngcakani, into a complaint about the 2005 surveillance of businessman Saki Macozoma, and a related trove of emails that were determined as fake. 

Masetlha unsuccessfully appealed against his dismissal when the Constitutional Court ruled against him in October 2007. 

On Monday, Mpofu repeatedly argued in his cross-examination of Kekana that the only reason Mkhwebane met the SSA was that the transcripts of the meeting with the ex-spook’s boss were missing. 

“If the notes of the meeting with Masetlha were available, then these meetings would not have been necessary…”

Kekana, an attorney, stood up to the cross-examination, maintaining his view that the meeting with the SSA may have been needed to get their side as an implicated party, but that the private face-to-face between Mkhwebane and Mahlobo during an investigation was “odd”, and the only time such a private meeting happened.

Not recording or taking minutes of that meeting, and others with the SSA, was not proper.

“I didn’t believe that recommendation was relevant for our investigation,” he told Section 194 inquiry evidence leader, advocate Nazreen Bawa (SC) earlier on Monday (in various drafts he wrote, the constitutional amendment recommendation wasn’t there).

Nationalising the SARB

The Public Protector requested him to find a way to include the nationalisation of the Reserve Bank in the draft report. This came shortly after the meetings with the SSA officials.

Kekana said he inserted the first part of the SSA note on the constitutional amendment to the mandate of the SARB “on the instruction of the Public Protector”, before submitting the final draft report in early June 2017. He did not include the second part, also amending Section 224(2), which also appeared in the Public Protector’s final 19 June 2017 Absa Bankorp report.

Kekana had resisted including such a constitutional provision in the various drafts, including the final draft submitted in mid-May. 

In many ways, Kekana’s testimony at the Section 194 impeachment inquiry is not new — in December 2019, his protected disclosure affidavit was widely reported on as it was sent to the Presidency and Parliament.

“I got an acknowledgement from the deputy speaker (Lechesa Tsenoli) on 14 January,” he told MPs.

It’s unclear whether any action was taken, either on this whistle-blower’s statement or on the one from Free State boss of the Office of the Public Protector, Sphelo Samuel, who had written to Parliament in February 2020 to call for an investigation into Mkhwebane’s conduct in office.

In March 2020, Samuel was suspended and then dismissed, but in late June 2022, the Commission for Conciliation, Mediation and Arbitration ordered his reinstatement and payment of 12 months’ back salary, according to News24.

Kekana, dismissed in September 2020 after being suspended in August 2019, has taken his case to the Labour Court. He seeks reinstatement as senior investigator in the Office of the Public Protector, which he joined in 2011.

Cross-examination continues on Tuesday. DM