Cape Town - A former Public Protector of South Africa (PPSA) investigator has told the inquiry into suspended Public Protector Busisiwe Mkhwebane’s fitness to hold office that Mkhwebane made changes to the controversial CIEX Bankorp/Absa report after she took over from her predecessor Thuli Madonsela.
This is the report which recommended that the mandate of the SA Reserve Bank (SARB) be changed.
Advocate Livhuwani Tshiwalule was based in the public protector’s private office, but resigned a month after Mkhwebane began her term in October 2016.
Tshiwalule, who worked as the lead investigator in the public protector’s investigation which dealt with the apartheid-era bailouts of several companies who were given “lifeboats”, was led in his evidence by advocate Ncumisa Mayosi.
He said the changes made under Mkhwebane, such as the executive summary, were not part of the original investigation under Madonsela.
He testified that Mkhwebane asked him to research the reserve banks of other countries which he did although he did not understand the request, as it had nothing to do with the core of the CIEX Bankorp/Absa bailout report.
The inquiry was told by Tshiwalule’s successor, another former senior investigator Tebogo Kekana, that Mkhwebane told him to find a way to include a recommendation that the constitution be amended to nationalise the SARB.
Kekana said he thought that the fact that he did not do so led to him being charged with misconduct by Mkhwebane.
When he began his cross-examination Mkhwebane’s legal representative, advocate Dali Mpofu SC said the committee needed to narrow its focus to the principal judgments as advised by the independent panel report which set it up.
He said they were the CIEX Bankorp/Absa bailout, the Vrede dairy, the CR17 and the Financial Services Board judgments.
Other judgments included the Sars Rogue Unit judgment, Ivan Pillay’s early retirement and human resources issues against Mkhwebane dealing with the harassment of subordinates.
Mpofu took the inquiry through the Constitutional Court’s minority judgment on the CIEX Bankorp/Absa report by former Chief Justice Mogoeng Mogoeng.
In his minority judgment, Mogoeng said, among other things, “public office-bearers must be allowed the space to be human”.
“And to err is human. It ought to take much more than ignorance, limited competence in one’s area of responsibility, poor judgement or incidental but harmless unfairness to others to order personal costs against an office-bearer litigating in a representative capacity.”
The majority judgment, by a vote of 8 to 2, ruled that Mkhwebane should pay 15% of the SARB’s legal fees out of pocket after it successfully set aside her report into the CIEX Bankorp/Absa bailout matter.
Meanwhile, before Mpofu began his cross-examination of Tshiwalule, he again brought up the issue of summoning President Cyril Ramaphosa to give evidence at the inquiry.
Mpofu told inquiry chairperson Qubudile Dyantyi that he had sent him a letter on Monday ahead of the public holiday, requesting him to subpoena or otherwise summon Ramaphosa to the hearings.
Mpofu told the committee he was returning to the matter as he had received queries from the public asking him if he intended to follow up on his earlier request to call Ramaphosa to testify, but he felt it was only proper to raise the matter with Dyantyi at the hearings first.
Mpofu also referred to a second letter to Dyantyi regarding the recalling of previous witnesses whom he said he had not finished with.
They are former Sars executive Johann van Loggerenberg and former Sars deputy commissioner Ivan Pillay.
The inquiry continues today with evidence from yet another former senior investigator at the PPSA, advocate Nditsheni Raedani.