South Africa


Mkhwebane lawyer Mpofu latches on to Mogoeng minority ConCourt opinion

Mkhwebane lawyer Mpofu latches on to Mogoeng minority ConCourt opinion
Suspended Public Protector Busisiwe Mkhwebane. (Photo: Gallo Images / Tebgogo Letsie)

Former Chief Justice Mogoeng Mogoeng’s minority opinion in the Constitutional Court ruling setting aside suspended Public Protector Busisiwe Mkhwebane’s CIEX/Absa report was wheeled out of the armoury and into the Section 194 inquiry on Wednesday.

Advocate Dali Mpofu, representing suspended Public Protector Busisiwe Mkhwebane in the parliamentary inquiry into her fitness to hold office, prefaced his move with the justification, once again, that judgments of the apex court were merely “opinions”. 

Mpofu cross-examined advocate Livhuwani Tshiwalule, who had been an investigator in the CIEX/Absa matter after a complaint was lodged by advocate Paul Hoffman of Accountability Now in 2011. Tshiwalule worked closely with former Public Protector Thuli Madonsela.

Read more in Daily Maverick: “Analysis: Public Protector’s strange Absa report, and disturbing attack on Reserve Bank

Hoffman 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 SA Reserve Bank’s 1992 R1.2-billion bailout of Bankorp.

Earlier in the day, committee members had to wrap their heads around the Mpofuesque logic that Mogoeng’s minority “opinion” in setting aside the Public Protector’s report, counted for more and should be preferred over a judgment by a majority of nine Constitutional Court judges.

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

The Gauteng High Court too, in August 2017, found that Mkhwebane’s report had sought to alter the constitutional mandate of the Reserve Bank.

On Wednesday, Tshiwalule told the committee that Madonsela had believed former president Thabo Mbeki and former finance minister Trevor Manuel had violated three sections of the Constitution relating to the Members Ethics Act in failing to act on the CIEX report’s recommendations.

Tshiwalule said they had both been of the view that monies owed to the South African government should be repaid. The investigator added that when he had interviewed Mbeki on the issue of why it had taken so long to act, Mbeki had said this would have resulted in a run on the banks, damaging the economy.

In fact, when Mkhwebane released her report on 19 June 2017, its impact on the economy was evident.

Read more in Daily Maverick: “The curse of CIEX — Anatomy of the legal boomerang that came back to haunt Mkhwebane

“The rand depreciated by 2.05% from R12.79 to R13.05 against the US dollar. R1.3-billion worth of South African government bonds were sold by non-resident investors,” was how Reserve Bank governor Lesetja Kganyago put it at the time

Although some of these sales had subsequently been reversed, they were still “significant”, Kganyago added. 

“The day’s sales… rank amongst the biggest over the last three months,” according to Kganyago in his affidavit filed as part of the court review of the Public Protector’s report.

Visit Daily Maverick’s home page for more news, analysis and investigations

At the start of the fifth week of hearings, evidence leader Nazreen Bawa had set out various court judgments relating to Mkhwebane’s CIEX/Absa report.

Later, Mpofu opted to hitch a ride on Mogoeng’s judicial robe tails.

The former Chief Justice, in his opposing opinion, had stated there had been “no malice” on the part of Mkhwebane with regard to her conduct in the CIEX matter. That she had kept meetings with the State Security Agency and Jacob Zuma secret was also no big deal, said the then Chief Justice.

Mkhwebane could have shredded these, suggested Mogoeng, and the fact that she hadn’t was evidence that she was not the “dishonest conspirator” she was made out to be.

In his minority view, the former Chief Justice reasoned that only cynics would “readily infer cynicism” with regard to Mkhwebane’s meeting with the SSA and former president Zuma.

Mpofu complained bitterly that the evidence leaders had concentrated only on taking committee members through the majority judgment, and wanted to highlight that Mogoeng, in fact, had got it right, so to speak.

Vrede dairy farm

In a day jam packed with evidence on various fronts, Tshiwalule told committee members that Madonsela had been unhappy with the original investigation into the Gupta-sponsored Vrede dairy farm in the Free State.

Madonsela had hoped to release this report before her term ended, he said.

With regard to Hoffman’s original complaint, Tshiwalule repeated that there had been nothing to suggest that Hoffman had wanted the role of reserve banks around the world to be investigated.

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

Evidence was also presented by Tshiwalule that the executive summary of Mkhwebane’s CIEX report was “entirely new”, and that he had not been consulted about this.

After Tshiwalule left the office of the PP, he told committee members he had been visited by police at his new workplace. Officers had informed him that he was being investigated in connection with the leak of Mkhwebane’s preliminary report.

Mkhwebane had lodged a complaint with the police in this regard. The National Prosecuting Authority had also contacted him, asking him to respond to questions — which he did.

“After that, no one contacted me again,” he said.

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

The inquiry continues. DM


Comments - Please in order to comment.

  • Nick Griffon says:

    What I really want to say about Dali Mpofu would be rejected by the fellow readers and commenters on this platform.

    The man is an embarrassment and a disgrace to the legal profession as a whole.
    One only have to look at the caliber of clients that he represents so passionately to form a picture of the morals and character of this individual.
    His conduct in court is also just completely unacceptable on a good day.
    He acts like an article clerk who watched a few too many Suits episodes.
    Then finally, he is a terrible advocate. Always stumbling over his words, always seems unprepared. Always looking for a document. It is actually painful to listen to him. Guess his clients ran out of people willing to tank their careers to defend them and he is the bottom of the barrel. The last scoop.

    • ANC must GO says:

      Agree 100%

    • Alan Watkins says:

      I disagree with you on Mpofu being a terrible advocate. He is amazing, fantastic and wonderful talented at extracting huge sums of money out of his clients without any success

      • Tebogo Phakwe Phakwe says:

        I totally agree as well. Mpofu and his clients know very well from the beginning that they won’t win and they are actually not interested in that. What Mpofu is doing is that he has an agenda to push, to murky the waters as much as possible. He is providing the followers of his clients with alternative facts. Remember the Trump administration. They are aware that their house of cards that is state capture has crumbled and probably most of them will end up in orange jump suits. So when jail is eminent for them they will need the support of the “masses” and they don’t have enough money and patronage to dish out. In short what Mpofu is doing is to plant the seed in the minds of the “masses” that the juditiary and the legal systems are captured and they must rise against it. Mpofu, RET and the EFF are positioning themselves to take control the state by any means possible.

      • Paddy Ross says:

        I recognise your irony but that does not alter the fact that he is avery poor advocate. Read Karyn Maughn on News24 today.

    • Quentin du Plooy says:

      Incompetent idiot.
      Sums it up innit

  • Sam Joubs says:

    Pity the people who have to deal with mpofu on a daily basis.

  • David C says:

    Mpofu, using Mogoeng to defend Mkhwebane in an ANC-dominated parliament perfectly sums up the sorry, shameful and shambolic state of SA politics. There is something deeply defective in our democracy when scarce resources, extracted from citizens on the threat of force or incarceration (i.e. taxes) are being distributed to everyone involved in this ridiculous charade.

  • Anne Felgate says:

    Lots of interesting evidence popping out of the woodwork.
    All of this just reinforces the evidence from the Zondo commission

  • Rowan G says:

    If Mpofu believes legally binding findings are “merely opinions”, it’s time he be disbarred for making a mockery of the legal profession. Although by now he’s probably milked us and some of his clients enough that he can retire and not worry about working another day in his life.

  • Hilary Morris says:

    I can only imagine how real lawyers at the bar must cringe every time Mpofu opens his mouth. How he is allowed to continue to practice (when clearly he’ll never reach the ‘perfect’ stage) is beyond comprehension. He is a disgrace to, and makes a mockery of, the legal profession.

  • Manfred Hasewinkel says:

    Viewed against a consistent pattern of conduct in all of Mkhwebane’s high profile reports, Mogoeng’s dissenting judgement seems naive. I thought the purpose of the Section 194 enquiry was about Mkhwebane but this doesn’t seem to be the case. Will she even be required to answer a single question. It’s all about giving a forum to Dali Mpofu. Maybe this whole circus needs to be shut down now. Dali Mpofu should rather voice his ‘opinions’ somewhere else, best outside a public institution, maybe on the Grand Parade in Cape Town. You’ve got to ask why Mpofu & Malema so fervently support Mandisa Maya for Chief Justice.

Please peer review 3 community comments before your comment can be posted


This article is free to read.

Sign up for free or sign in to continue reading.

Unlike our competitors, we don’t force you to pay to read the news but we do need your email address to make your experience better.

Nearly there! Create a password to finish signing up with us:

Please enter your password or get a sign in link if you’ve forgotten

Open Sesame! Thanks for signing up.

MavericKids vol 3

How can a child learn to read if they don't have a book?

81% of South African children aged 10 can't read for meaning. You can help by pre-ordering a copy of MavericKids.

For every copy sold we will donate a copy to Gift of The Givers for children in need of reading support.

A South African Hero: You

There’s a 99.8% chance that this isn’t for you. Only 0.2% of our readers have responded to this call for action.

Those 0.2% of our readers are our hidden heroes, who are fuelling our work and impacting the lives of every South African in doing so. They’re the people who contribute to keep Daily Maverick free for all, including you.

The equation is quite simple: the more members we have, the more reporting and investigations we can do, and the greater the impact on the country.

Be part of that 0.2%. Be a Maverick. Be a Maverick Insider.

Support Daily Maverick→
Payment options