Perjury charges against Public Protector are a warning to public officials

The perjury charges against the Public Protector, Advocate Busisiwe Mkhwebane, underline the need for public officials – particularly those whose role is to uphold the Constitution – to uphold the highest standards of fairness and honesty.

The new year will start on a warning note for such public officials, when the Public Protector, the head of a Chapter 9 institution, is due to appear in the Pretoria Magistrate’s Court on charges of perjury on 21 January.

This is not a frivolous case, but the direct result of a Constitutional Court judgment.

It’s taken more than a year for it to get as far as formal charges, but this week the National Prosecuting Authority (NPA) confirmed it has taken a decision to prosecute Mkhwebane for perjury based on the evidence presented by the Hawks.

The charges arise from the Concourt judgment of 22 July 2019, which confirmed a personal costs order against Mkhwebane from a high court dispute over her overturned Bankorp/ABSA bank report about the mandate of the SA Reserve Bank and an apartheid-era bank bailout. In these cases, it emerged that the Public Protector had given the court different versions of two meetings with The Presidency in three different affidavits and failed to disclose these meetings in her report.

In August 2019, OUTA provided the Hawks with details to support the perjury charges, to assist the Hawks in the investigation. This followed OUTA’s submission in June 2019 of a petition to Parliament calling for an inquiry into Mkhwebane’s fitness to hold office. (See here for more details.)

“OUTA welcomes the formalising of charges against Advocate Mkhwebane, as we believe her actions have dishonoured her office. She also dishonoured the profession. As an advocate and an officer of the court one would expect her to be open and honest at all times,” says Advocate Stefanie Fick, Executive Director of the Accountability Division.

We remind public officials of this extract from the Concourt judgment: “The Constitution requires public officials to be accountable and observe heightened standards in litigation. They must not mislead or obfuscate. They must do right and they must do it properly. They are required to be candid and place a full and fair account of the facts before a court.”

Voice note by Adv. Stefanie Fick available here. 

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