27/09/2017 06:13 SAST | Updated 27/09/2017 06:14 SAST

Why Did The Public Protector Consult The State Security Agency? Twice.

To whom does Public Protector Busisiwe Mkhwebane owe fealty? The public? The Presidency? Or the State Security Agency?

Moeletsi Mabe/Sunday Times/Gallo Images/Getty Images
Public Protector Advocate Busisiwe Mkhwebane.

Early in September, the SA Reserve Bank filed what is called "supplementary affidavit" in its case against Public Protector Busisiwe Mkhwebane. In it, the bank lifted the lid on the fact that the Public Protector consulted the Presidency and the State Security Agency (SSA) before making her bombshell findings on the central bank.

In dealing with the state bailout of a predecessor bank to Absa, Mkhwebane sought to direct Parliament to change the powers and independence of the Reserve Bank. The court put the kaibosh in that attempt after the Reserve Bank brought an urgent interdict against the Public Protector's mooted remedial action.

But now new evidence the central bank has put into the public domain begs the question about how Mkhwebane sees her role. By consulting the Presidency and the SSA twice, her independence is in question. In addition, Mkhwebane bypassed Parliament, to which she reports.

In the affidavit, the bank's legal counsel notes that: "The fact that this topic was even discussed with the SSA indicates that the public protector's investigation was aimed at undermining the Reserve Bank. It also indicates that by May 2017 the investigation had turned from the question whether the government had implemented the CIEX Report to an attack on the Reserve Bank."

In public hearings, chaired by former ANC MP Makhosi Khoza, Mkhwebane's resumé revealed she had worked for the SSA while serving as an immigration officer in China. The Reserve Bank's application now raises the question of whether the Public Protector is more loyal to Intelligence than to her new boss -– the public.

The Public Protector replies

The Public Protector indeed met with the Presidency on 7 June 2017 and the purpose of the meeting was to enquire about Judge Willem Heath's report, as the office of the Public Protector did not have Judge Heath report on the ABSA Lifeboat, and the meeting was necessary to determine if the Public Protector should direct the re-opening of the proclamation or direct the President or SIU to issue the new proclamation. Accordingly, the meeting with the Presidency did not discuss nor was the presidency consulted with regard to the amendment of the South African Reserve Bank's mandate.

[With regard to the Intelligence meeting]...the public will recall that CIEX concluded an agreement with the then South African National Intelligence Agency (NIA), which is now called the State Security Agency (SSA). Therefore, the purpose of the meeting with SSA was a follow-up meeting to enquire about the aforesaid contract and the management process of that contract by SSA.

The Public Protector would like to assure the public that the meeting between Presidency and the State Security Agency was part of the Public Protector's constitutional mandate to conduct an investigation. Therefore, as part of her investigation, the Public Protector is required to meet any person who may assist her in her investigation.