There was nothing odd about a “one-on-one meet and greet” between public protector Busisiwe Mkhwebane and intelligence minister David Mahlobo ahead of a formal meeting, as “a matter of courtesy”, suggested Mkhwebane’s counsel Dali Mpofu SC before parliament’s impeachment committee on Monday.
Mpofu was cross-examining Tebogo Kekana, a senior investigator in the office of the public protector who was fired last year after clashing with the office of the public protector. He is litigating in the labour court seeking his reinstatement.
Mpofu was questioning him about an affidavit he had made as a protected disclosure in 2019, in which he described a meeting on May 3 2017 with Mahlobo, and “representatives of the SSA” James Ramabulana and Arthur Fraser.
The affidavit dealt with the investigation that led to Mkhwebane’s 2017 “CIEX report” into an apartheid-era bailout of Bancorp bank. The report was set aside by the Pretoria high court as unconstitutional. This was the first of a number of judgments in which Mkhwebane was heavily criticised. Litigation on the same report led the Constitutional Court to uphold a personal and punitive costs order against Mkhwebane for being dishonest in how she conducted herself during the litigation.
Kekana said in his affidavit that as part of the CIEX investigation Mkhwebane’s predecessor Thuli Madonsela had interviewed Billy Masetlha, but the transcript of the interview was misplaced. As a result, Mkhwebane requested a meeting with the SSA — leading to the May 3 interview.
Before the meeting started, Kekana said he was informed “Mkhwebane was having a discussion with minister Mahlobo before the meeting. I was not party to the discussion. I found it odd that Adv Mkhwebane would hold a discussion by herself with one of the attendees of an interview without anyone else present,” said Kekana.
In cross-examination, Mpofu asked Kekana whether he witnessed the meeting. When he said he did not, he asked him whether he would still find it “odd” if the meeting was nothing more that “an informal chit-chat”.
Kekana said he would have still found it odd because in all the investigations he had done with the public protector, there had never been a one-on-one with any party — “so I found this instance to be odd”.
He also said he had been in interviews with ministers before.
I was not party to the discussion. I found it odd that Adv Mkhwebane would hold a discussion by herself with one of the attendees of an interview without anyone else present.
— Tebogo Kekana
Mpofu said Mkhwebane’s evidence would be that since the meeting was at the offices of the public protector, she did not want Mahlobo left in a waiting room; and her one-on-one with him was a matter of a few seconds in which they exchanged pleasantries.
Earlier Kekana testified that SSA representatives had been responsible for drafting a portion of her report — the part that directed an amendment to the constitution. This direction was found to be unconstitutional by the Pretoria high court.
Kekana referred to a meeting on June 6 2017 which he attended with Mkhwebane and “representatives from the SSA — namely Mr Mai Moodley and Mr James Ramabulana”.
At the meeting, Moodley was introduced as an economist and he produced a piece of paper “which contained a draft of proposed recommendations which were to be inserted into the final report”. The recommendations were specific wording for an amendment to the constitution.
Kekana said: “Accordingly, the remedial action contained in the CIEX investigation report did not come from the office of the public protector, but rather from the SSA.”
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