Busi perjury case ‘flimsy’

The pending criminal case against Public Protector Busisiwe Mkhwebane is unlikely to be a strong one, according to a legal expert.

This week, director of lobby group Accountability Now Paul Hoffman laid a criminal complaint with the South African Police Service (Saps), accusing her of perjury.

This was based on the Constitutional Court’s recent judgment which found Mkhwebane had lied under oath about her investigation into an apartheid-era bailout of Absa Bank by the South African Reserve Bank.

Elite investigative unit the Hawks confirmed the case was under investigation.

Phephelaphi Dube, an independent legal analyst, said for a successful conviction, the Hawks must find evidence that Mkhwebane wilfully lied or misrepresented herself under oath.

“The hurdle is that the public protector may argue that she did not misrepresent the facts wilfully and that it was what she believed to be the truth at the time … that she was not intentional in misrepresenting the truth.”

The minority judgment of Chief Justice Mogoeng Mogoeng and Justice Patricia Goliath could be used to support this claim, she added.

In the judgment, Mogoeng disagreed that the high court had sufficient reasons to conclude that Mkhwebane should be held personally liable for costs after her report in the Absa transaction was declared unlawful.

Nevertheless, Dube said the case for perjury “may not be a strong one”.

Hoffman also laid a complaint against Mkhwebane with her own office, requesting an investigation into the allegation of perjury.

Yesterday the office of the public protector said it found the complaint “strange” as Mkhwebane did not account to anyone except parliament.

But Hoffman has indicated his intentions had little to do with seeing Mkhwebane behind bars.

He said he laid the charge “to concentrate the minds of those involved in the prickly tasks of decision-making around the future of Public Protector Busisiwe Mkhwebane and to inject a stiff dose of reality into the debate”.

A process which could see Mkhwebane declared unfit for office is already under way in parliament.

The Legal Practice Council is also addressing a request for Mkhwebane to be struck off the roll of advocates.

The hurdle is that the public protector may argue that she did not misrepresent the facts wilfully.

Phephelaphi Dube Independent legal analyst