At the resumption of the Section 194 impeachment inquiry into her fitness to hold office, Busisiswe Mkhwebane once again quoted former Chief Justice Mogoeng Mogoeng’s words in the “Nkandla” judgment; that the Public Protector (PP) had “vast powers” and was bound to feel blowback from the powerful.

Representing Mkhwebane, Advocate Dali Mpofu also chose to refresh memories, flighting the “biblical David vs Goliath” quote, as well as the one about the PP being “one of the true crusaders of anti-corruption and clean governance”.

It was “mainstream media” that “perpetuated the narrative” that she was “incompetent” and had no clue about the law, all of which has led to “manufactured consent”. She quoted the famous Noam Chomsky maxim to the committee (again).

“Now it’s an issue you can’t touch the president,” she told the committee, adding, “it makes me feel that I’m being persecuted for doing my work”.

It was the “deep state”, Mkhwebane charged, that did not want to be held to account.

“Deep State”, for citizen novices, is a term used to describe, according to Wikipedia, “a type of governance made up of potentially secret and unauthorised networks of power operating independently of a state’s political leadership in pursuit of their own agenda and goals”.

While this sounds remarkably like the findings of the State Capture Commission, this is not Mkhwebane’s interpretation.

The Public Protector, said Mpofu reading further from Mogoeng, was “not supposed to bow down to anyone, not even at the highest chambers of state power”. 

Moving among ‘untouchables’

Mkhwebane on Tuesday claimed that she was now facing the “wrath” of powerful people in the executive: “The untouchables”, as her legal team has branded them, and who she was endeavouring, with biblical guidance, to hold to account.

Read more in Daily Maverick: Alternate History Inc: Biblical Busisiwe Mkhwebane tearfully summons spirits of Winnie, Rosa Parks and Esther

Oddly, for the head of an independent Chapter 9 institution, Mkhwebane did not find it peculiar in 2017 when she opted to move in and live among these very “untouchables”.

The former PP occupied a luxury R60,000-a-month home before moving, in April 2021, to a smaller three-bedroomed duplex at R11,000 per month on the luxury Bryntirion ministerial estate in Pretoria. 

Mkhwebane would have found 15 tennis courts and a nine-hole golf course right on her doorstep, as well as enjoying the benefits of free security, DStv and reliable electricity.

President Ramaphosa’s big house is just up the road in the same luxury compound, as is the deputy president’s home. Former president Jacob Zuma was a neighbour.

Both rentals were footed by the Public Protector South Africa, which paid our money to the Department of Public Works and Infrastructure. Mkhwebane was asked to vacate the property after media investigations.

All in all, it cost taxpayers around R4-million, but this “narrative” belongs in the realms of reality, something that appears to be somewhat elusive in the inquiry at this stage.

‘Cyril is out to get me’

Despite the courts finding otherwise, Mkhwebane was adamant that her suspension by President Ramaphosa was because she was investigating him.

“Sending the 31 [Phala Phala] questions led me to be suspended. At the end of the day, these are the repercussions when you investigate the powerful,” she told the committee.

With regard to her CR-17 campaign funding investigation that has landed her before the committee, Mkhwebane denied ever tampering with the wording of the Executive Members’ Ethics Act. 

Just like she denied adding a note by the State Security Agency to her Reserve Bank/CIEX report in which she attempted to bully through changes to the Constitution that would alter the mandate of the Reserve Bank.

Read more in Daily Maverick: Inside Busisiwe Mkhwebane’s State Security Agency-riddl…

In the CR-17 matter, the courts found that in her remedial action, Mkhwebane had altered the wording of the Executive Members’ Ethics Act so that it could fit the evidence she thought she had before her.

She had also “ordered” National Prosecuting Authority (NPA) head Shamila Batohi to investigate “prima facie” evidence of money laundering, thus overstepping her mandate (again). The PP can only “refer” matters to the NPA, not “order” it to investigate.

The meaning of “refer” and “order” appeared to Mkhwebane’s legal team to mean one and the same thing.

Mpofu rallied to Mkhwebane’s support. “All you did was make this recommendation and you should be impeached?” 

Back in 2019, however, Batohi had understood Mkhwebane’s “orders” differently, writing: “These orders impact on and infringe the constitutional and statutory mandate of the NPA to investigate and prosecute crime, free of supervision or interference by another party and without fear or favour.”

Mkhwebane denied attempting to direct the National Directorate of Public Prosecutions in their investigation into the funding of the CR-17 campaign, and that the PP Act allowed her to refer a matter, which is what she proceeded to do. She told the committee she was a “sacrificial lamb” and that her “powers were a curse”.

Investigating the executive had led them to believe, she said, “that you are targeting them”.

My bleeding heart

With regard to Gauteng High Court Judge Dunstan Mlambo’s ruling on her CR-17 report, Mkhwebane confessed to the committee that her “heart bled when I read those paragraphs that I had changed the code”.

She reiterated that she had been “wrongly accused”.

Rodney Mataboge, PP chief investigator, has previously testified to the inquiry that he had used the correct wording of the Ethics Code in his draft, but that this had been changed on Mkhwebane’s instruction.

This, after she had consulted Paul Ngobeni, Mkhwebane’s “legal advisor” – a man being sought by US authorities and someone who did extensive work for the PP.

Read more in Daily Maverick: Wrong side of truth plus incompetence – documents reveal why Busisiwe Mkhwebane keeps losing in court

Mkhwebane has already admitted in her response to Ramaphosa’s successful challenge in 2019 that the correct wording was, “may not wilfully mislead the Legislature”.

The words,“inadvertently mislead”, had been added, Gauteng High Court Judge Sulet Potterill found.

On Tuesday, Mkhwebane said there was “no sinister motive” with regard to the allegation that she had denied Ramaphosa an opportunity to be properly heard on the CR-17 matter. The complaint had been lodged in terms of the Executive Members’ Ethics Act, she said, which meant she had been obliged to investigate. 

The courts, however, found otherwise.

Mpofu said Ramaphosa had used a “technical point” [an argument later supported by the High Court and Constitutional Court] which, in its form at the time, the Act did not make provision for.

She had sought a recission order from the ConCourt, Mkhwebane told the impeachment inquiry, as the apex court had made “a mistake” in the finding of “dishonesty” against her.

On the horns of Phala Phala 

While the Public Protector’s investigation into the break-in at Ramaphosa’s Phala Phala game farm in which US dollars were stolen does not form part of the Section 194 inquiry, Mpofu and Mkhwebane were eager to revisit it on and off during the day.

Read more in Daily Maverick: EFF and DA call for ad hoc committee to probe Phala Phala saga after ConCourt rules against Ramaphosa

Phala Phala, she informed the committee, was “at the centre” of the impeachment inquiry.

“For me it is at the centre of these proceedings, and for the public to also know that,” she stated.

After an objection by evidence leader Advocate Nazreen Bawa that Phala Phala was not relevant to the current proceedings, Mpofu asked Mkhwebane if she was in agreement with this notion.

“The issue of suspension is directly linked to the operations of this committee. There is no way I wouldn’t deal with this,” she responded.

The Constitutional Court is yet to rule on her suspension by the president.

Mkhwebane is set to run through her infamous SARS “rogue unit” investigation when she gives evidence on Wednesday. DM