Public protector Busisiwe Mkhwebane. Picture: RUVAN BOSHOFF
Public protector Busisiwe Mkhwebane. Picture: RUVAN BOSHOFF

Public protector Busisiwe Mkhwebane has described the criminal charges against her as “frivolous” but says she will co-operate with the police.

The Hawks are investigating a fraud case against Mkhwebane, after a criminal complaint was lodged against her by NGO Accountability Now’s director Paul Hoffman on Monday. She is also expected to fight off efforts in parliament to have her removed from office.

The criminal complaint is the latest setback for Mkhwebane who has been at the receiving end of adverse court findings, which include a personal costs order.

“Regarding the frivolous criminal charges, advocate Mkhwebane — as a law abiding citizen — will co-operate with the police as best as she can,” Oupa Segalwe, spokesperson for the public protector said on Wednesday. 

Mkhwebane has been embroiled in a political war with both Ramaphosa and public enterprises minister Pravin Gordhan, who have both been subjects of her investigations and have had adverse findings made against them.

The reports have been taken on review, moving the battle to the courts. 

Hoffman submitted an affidavit to the police on Monday in which he recommended that charges of perjury and defeating the ends of justice be brought against Mkhwebane as a result of the Constitutional Court judgment in which her conduct was, among other things, labelled dishonest.

In the affidavit submitted to the police, Hoffman said: “While the matter was in the nature of civil proceedings the findings of fact in relation to dishonesty, deliberate misrepresentation of facts and an attempt to mislead the courts all involve criminal activities on the part of the accused.”

He added that it “would appear from the said findings that the accused is guilty of perjury and defeating the ends of justice”.

Accountability Now entered the fray on the day of the apex court’s judgment when Hoffman first asked the Legal Practice Council (LPC) to consider bringing an application to have her struck from the roll of advocates, which the LPC is now considering. It was followed up with the complaint to the police, as well as a maladministration complaint to her office. 

Segalwe said the complaint to the office of the public protector to investigate Mkhwebane for alleged maladministration was “strange, especially coming from a silk [senior counsel]”.

He said Mkhwebane does not account to her deputy, nor does she answer to her staff. “It’s the other way round. Someone needs to advise advocate Hoffman to go to the National Assembly, where advocate Mkhwebane accounts.” 

A step further

On Tuesday, Hoffman went a step further by alerting President Cyril Ramaphosa that the purpose of it was to draw his attention to the provisions of section 194(3)(a) read with section 90(1)(a) of the constitution. 

“The former affords a discretion to the president to suspend the public protector ‘at any time after the start of proceedings … for [her] removal’ and the latter provides that when the president is unable ‘to fulfil the duties of president’ the deputy president should act in his place,” Hoffman said. 

He added that in light of Ramaphosa being locked in litigation with Mkhwebane, it was “obvious” that the president was too conflicted to exercise an objective discretion in terms of suspending Mkhwebane, but that this discretion must be left up to deputy president David Mabuza.

This is in line with an order granted by the high court when former president Jacob Zuma was found to be too conflicted to appoint the National Director of Public Prosecutions (NDPP) and that Ramaphosa, then the deputy president, should appoint the NDPP while Zuma was still in office.