As the parliamentary Section 194 Inquiry into suspended Public Protector Busisiwe Mkhwebane’s fitness to hold office entered its fifth week, Livhuwani Tshiwalule, an advocate, set out the trajectory of the CIEX investigation. 

The committee heard that complaints from expelled EFF member Andile Mngxitama’s new outfit, Black First Land First (BLF), founded in 2015, had prompted Busisiwe Mkhwebane’s renewed and urgent interest in the CIEX investigation.

The CIEX investigation was later weaponised by the Public Protector (PP) in an attempt to illegally alter the constitution and the mandate of the South African Reserve Bank (Sarb).

Mkhwebane took office in October 2016. That same month, Mngxitama released in Mamelodi BLF’s own “preliminary report on apartheid-era corruption and other economic concerns”.

In February 2016, a few months earlier, it turns out from the #Guptaleaks, Mngxitama not only met with the Gupta family but also asked them for funding for the BLF.

While the BLF’s origin and funding have not been discussed at the hearing, earlier, evidence leader Advocate Nazreen Bawa, set out the history of the court action with regard to the report, particularly rulings by the Constitutional Court. Tshiwalule had earlier testified that BLF had contacted Mkhwebane and spoke of potential “unrest” brewing should she not complete the report.

These rulings had found that Mkhwebane had failed to disclose that she had met twice with former president Jacob Zuma, also a friend of the Guptas. Her meetings with former Minister of State Security, David Mahlobo, had also not been made known. These meetings were not recorded, contrary to tradition, the courts found.

The Constitutional Court ultimately found that Mkhwebane “did not fully understand her constitutional duties”, that she failed to report meeting Zuma, that she had been acting on the advice of the SSA.

The court also found that Mkhwebane had not afforded implicated parties the right to reply. This has emerged as a key feature of all Mkhwebane’s reports that were ultimately politically weaponised.

Tshiwalule joined the office of the PP in 2014 and had been part of the CIEX investigation which was already “at a substantial stage”. He said he worked directly with Madonsela.

The complaint had been lodged in 2011 by Advocate Paul Hoffman of Accountability Now. Hoffman’s original complaint had sought an investigation into a government agreement with CIEX, a covert investigative body in the UK, in relation to its 1997 investigation into the Reserve Bank’s 1992 R1.2-billion bailout of Bankorp.

By the time Mkhwebane arrived, interviews had been conducted with former Reserve Bank governors Chris Stals, Tito Mboweni and Gill Marcus. Trevor Manuel, former Minister of Finance, had been interviewed as had Absa CEO Maria Ramos.

Frank Chikane, former DG in the presidency had given his input as had former president Thabo Mbeki.

Upon Mkhwebane’s taking up office, regular meetings were set up to track the progress and status of various investigations and reports, the committee heard. PP Office heads of provinces and all senior and executive managers attend these meetings chaired by Mkhwebane.

“The purpose of the think tank was mainly to look at the quality of reports and to check if all the processes have been followed. The language and tone have a role play in these,” remarked Tshiwalule.

Madonsela had given her reports “catchy” titles that would give the public a sense of what had been investigated, he said. An example cited was “Derailed” the PP’s report into Prasa.

He said he personally had been keen to name the investigation and report into the theft of funds for Nelson Mandela’s funeral “Not in My Name” or “I did not die for this”.  This would have evoked the “spirit of Nelson Mandela” for the public, he said.

The investigator told the committee that Stals had provided the PP’s office with “so much info” that in the end there had not been enough time to go through this evidence during Madonsela’s term.

Madonsela had given Tshiwalule written notes of the changes that needed to be incorporated in the draft of the CIEX report. Later he had handed the report to Mkhwebane and had had a number of meetings afterwards with her with regard to the report. Tshiwalule had handed over two boxes of documentary evidence, he told the committee.

Mkhwebane had informed him that he had needed “more time” to complete the investigation.

In November 2016 Tshiwalule resigned from the PP’s office. On 7 December 2016 Mkhwebane had contacted him, however, asking him to do research “on how other country’s reserve banks” functioned. He had looked at a number of banks in this regard including the US, China, Nigeria, Zimbabwe and Russia.

“I must say I did not understand this request. There was no link between the complaint that came from Advocate Hoffman and this request.”

Mkhwebane was suspended from office on 9 June. The parliamentary impeachment hearings got underway on July 11.

The inquiry continues. DM