Parliament, Wednesday, 10 August 2022 – The Committee for Section 194 Enquiry into Public Protector (PP) Adv Busisiwe Mkhwebane’s fitness to hold office heard today that she instructed an investigator in her personal office to conduct research into countries where central banks are under state control, even though this did not form part of the initial complaint lodged.

Adv Livhuwani Tshiwalule, who was involved in the Public Protector’s South African Reserve Bank (SARB) investigation, testified that he received an email from Adv Mkhwebane requesting him to conduct further research into the state ownership of central banks in other countries. He complied with the request, investigating the United States, China, Nigeria, Zimbawe and Russia to see if their central banks are controlled by the state. However, he did not understand why he had to do it, because it had nothing to do with the original complaint.

Adv Tshiwalule joined the Office of the Public Protector in 2014 and at that stage the SARB investigation was at a fairly advanced stage. He reported that former SARB governors Mr Tito Mboweni, Ms Gill Marcus and Mr Chris Stals were interviewed, as well as former Finance Minister Mr Trevor Manuel and former President Thabo Mbeki. Adv Tshiwalule said none of the interviews he conducted discussed the mandate of the SARB and that there was nothing to suggest that the mandate should be changed.

He told the committee that, shortly after Adv Mkhwebane was appointed, she asked for a briefing on finalised reports that had not been released by her predecessor, Adv Thuli Madonsela. Adv Tshiwalule informed the Public Protector that Black First, Land First had a keen interest in the investigation. He handed the preliminary report to the Public Protector with changes suggested by Adv Madonsela incorporated into that draft as well as two boxes of evidence. Adv Mkhwebane then informed him there was pressure from civil society to release the SARB/CIEX report.

Adv Tshiwalule indicated that Adv Madonsela was adamant that it was not possible to recover money in relation to the Bankorp bailout, as a legal claim in relation to this had prescribed. He, however, had a different view. “I was not entirely convinced that that was necessarily the end of the remedial action with respect to the recovery of funds and so I prepared two versions of the provisional report for her consideration.”

Adv Tshiwalule further stated in his affidavit that changes were made to the provisional report released by Adv Mkhwebane. These changes were made without his involvement and he did not know their provenance. He confirmed that the provisional report signed and sent out by Adv Mkhwebane differed in material respects from the report left behind by Adv Madonsela, in that findings against Mr Manuel, former President Mbeki and Mr Mboweni were removed during Adv Mkhwebane’s term.

Adv Tshiwalule then recounted how South African Police Service (SAPS) officials visited him at his new employers’ offices to inform him that they were investigating the leaked preliminary report. He was told Adv Mkhwebane had opened a case into the matter and that his name was mentioned in relation to the case. The National Prosecuting Authority also approached him on this matter and he prepared an affidavit for them.

At some point, members of the SAPS arrived at his home, asking if they could search it for relevant documents. However, they did not have a search warrant and so he refused to permit them to search his home. He has heard nothing about this investigation since then. Adv Tshiwalule says he felt “harassed” by the police investigating him over the leak of the CIEX report.

At the start of the proceedings, Adv Dali Mpofu (SC) indicated that he has written a letter to the committee to request that President Cyril Ramaphosa be subpoenaed to testify before the enquiry. He also indicated that he wants to recall witnesses Mr Johann van Loggerenberg and Mr Ivan Pillay. Committee Chairperson Mr Qubudile Dyantyi said he noted the comments and will respond once he has received the communication.

Adv Mpofu began his cross-examination by saying he wanted to flag two issues on the judgments against Adv Mkhwebane on the CIEX matter. He complained that the evidence leaders only focus on the majority judgment of the Constitutional Court. He wanted minority judgements to be considered as well and said these should be preferred by the committee.

The hearings will continue tomorrow. The committee was established by the National Assembly (NA) on 16 March 2021 to conduct a constitutional inquiry into the Public Protector’s fitness to hold office. The enquiry is hybrid and can be followed live on Parliament’s media platforms. Committee documents can be found on its page on Committee for Section 194 Enquiry - Parliament of South Africa


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