Request for Mkhwebane to be struck off advocates roll for 'lying under oath'

Public protector Busisiwe Mkhwebane speaks during a media briefing in Pretoria. (Photo by Gallo Images/Sunday Times/Thapelo Morebudi)
Public protector Busisiwe Mkhwebane speaks during a media briefing in Pretoria. (Photo by Gallo Images/Sunday Times/Thapelo Morebudi)

Public Protector Adv Busisiwe Mkhwebane faces a request for her to be struck off the advocates roll by the Legal Practice Council following Monday morning’s Constitutional Court judgment which found she had acted in bad faith and put forward a "number of falsehoods" in the Absa/Bankorp case.

Accountability Now, a non-profit organisation, wrote to the Legal Practice Council soon after the ruling, asking them to take note of the case.

"There are serious, final and unappealable findings reflecting on the honesty, integrity and competence of the Public Protector, who is a duly admitted advocate of the High Court," Adv Paul Hoffman, a director at Accountability Now, said in the letter to the Legal Practice Council, seen by Fin24.

The Constitutional Court, in a majority judgment on Monday morning, upheld the North Gauteng’s High Court order in February 2018, for Public Protector Busiswe Mkhwebane to be personally liable for 15% of the SA Reserve Bank’s legal fees in the Absa/Bankcorp case.

The apex court upheld the North Gauteng High Court’s decision that Mkhwebane had acted in bad faith. The majority judgment further ruled that the ConCourt found that Mkhwebane’s "entire model of investigation was flawed" and that she was not honest about her engagements during the investigation.

Lying under oath

"Kindly confirm that the Council is looking into the matter with a view to bringing an application for the striking off the roll of advocates of Ms Mkhwebane as part of its legislated disciplinary functions. We have copied her on this email," Hoffman wrote.

The ConCourt also ruled that the Public Protector "had put forward a number of falsehoods" in the course of litigation, including misrepresenting under oath the economic analysis underpinning her Absa report.

"As you know, it is intolerable that an officer of the court should be found to be lying on oath. Our highest court has so found in respect of Ms Mkhwebane. Her response that the judgment of the court creates a bad precedent is contemptuous of the court and does her no credit," Hoffman told the Legal Practice Council.

The Legal Practice Council is a national, statutory body established in terms of Section 4 of the Legal Practice Act of 2014 and is "mandated to regulate the professional conduct of legal practitioners to ensure accountability", according to its website.

This includes the objective to "determine, enhance and maintain appropriate standards of professional practice and ethical conduct of all legal practitioners and all candidate legal practitioners" and enhance and maintain the integrity and status of the legal profession.

Mkhwebane’s CV to Parliament lists her as an advocate of the High Court and having obtained B. Proc and LLB degrees from the University of the North (Currently the University of Limpopo).

In June, the Constitutional Court dismissed an application by the General Bar Council to have National Prosecuting Authority (NPA) senior officials Nomgcobo Jiba and Lawrence Mrwebi, struck from the roll of advocates.

Complicating matters in this case is that the Legal Practice Council is relatively new and started operating in November 2018. The regulatory body includes both advocates and attorneys for the first time and bar association can continue to exist as voluntary associations.

The Legal Practice Council was not immediately available for comment.

Requests to the Public Protector’s office were unanswered.

The office said in a series of tweets on Monday that they are studying the judgment and have the "utmost respect for the judiciary".

"This will set a precedent for all other Public Protectors. It is not clear how we will be able to do our work without fear, favour or prejudice going forward," the Public Protector’s office commented.

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