The South African Reserve Bank (SARB) has allegedly filed an affidavit stating that the Public Protector, Adv. Busisiwe Mkhwebane colluded with the Presidency and the State Security Agency on amendments to the Reserve Bank’s constitutional mandate. Below is an interview Political Analysis South Africa’s Stephanie Naidoo had with Ms Cleopatra Mosana, Spokesperson for the Public Protector, Adv. Busisiwe Mkhwebane.
Interviewer: There have been allegations that the Public Protector met with the Presidency and the State Security Agency, which was not included in the report. Please could you comment on this?
Cleopatra Mosana: What is wrong in that? The Public Protector was conducting an investigation, and in the investigation these parties were named. And, the Public Protector therefore decided to issue section 7(9) to the parties affected.
So these are not allegations, the meetings were material occurrences?
When you are conducting an investigation, and a particular person is implicated or is going to provide you with certain information, you have got a right to meet that person; and there is nothing sinister about the Public Protector issuing Section 7(9). And if you go and read the Ciex Report, what was the public Protector investigating – maladministration by the South African government; so, who is the Head of the South African government – it is the State President. So, who was she supposed to meet?
Perhaps, the issue relates to the fact that the meetings, and content, were not documented in the report.
The issue is, as you can see, you decide what you need to put in the report; there is no prescriptive way regarding what must be included in the report. what is to be done, and what is supposed to be done, and the discretion that the Public Protector has when she conducts an investigation; All these things are up to the Public Protector when she is conducting an investigation, and depending on evidence that she is sitting on, if there are things that she needs, and that is what it is. And with reference to the publication of findings, section A of the Public Protector Act, says that if there are exceptional circumstances that require a report to be kept confidential, that it can be kept confidential. The Public Protector can use whatever discretion she wants, in terms of what she puts in the report, or not.
The media has reported that the Public Protector, will be “setting the record straight.”
In terms of the publication of findings in the Ciex Report; If you read Section A of the Public Protector Act, and Section C, which states very clear; for the purposes of this section, if exceptional circumstances shall exists, the publication of the report can be kept confidential, and therefore the Committee must be provided with a reason, thereof, as to why it is kept confidential. But this issue here, as you can see, on those issues the Public Protector will not be able to give clarity.
The issue that people are misconstruing; if we are sitting in a meeting and you are jotting down notes, it does not necessarily mean that those notes will end up in the report. Like you, when you are sitting with me in a meeting, you might make notes for memory refreshing and it might not be the true content that includes all the details that you wish to include in your report. So, you cannot take those notes, and then say, “based on these notes, which were hand-written and based on a particular context, that the report is based on these notes” – it is misconstruing the whole thing. You use short-hand when you write, and not unless you give that person the opportunity to explain themselves, in that, “When you were writing this, what did you mean?” So, without affording the person the opportunity to explain themselves, therefore you cannot make that indeed factual.
Would you like to clarify the public record?
It becomes unfortunate that, with this whole thing of the report, they are trying to tarnish the image of the Office of Public Protector, and the Public Protector is an independent institution, who must do her work impartially and must ensure that she is guided by the Constitution, and ensure that in executing her Constitutional mandate that she is not biased towards any other person, or prejudicing any other person in conducting her work. But it is unfortunate, that since the Ciex Report, there seems to be a lot that casts aspersion onto the competency of the person that is the Public Protector, which is Advocate Busiswe Mkhwebane, which is unwarranted. I think that the people should allow the Public Protectors space and allow her to do job to the best of her abilities.
The media has speculated on the matter. Are you of the opinion that this in fact was not a technical or material issue, but that the bank or any other party has, for lack of a better term, an alternative agenda?
It was wrong to say people have an agenda, because if that is the case; already people are saying that we have an agenda. So, it would not be fair for us to say that anybody has an agenda, here. If people are in an investigation which implicates them, they will do whatever is in their powers and is allowed by the Constitution, to defend themselves. So, this thing of people pointing to “irregularities”, some have said that “it is a plot; there are schemes; there are agendas”. So, we need to be fair to the South African public, and be able to give them the objective view; because, at the end of the day, that undermines the effectiveness of the institution and the Public Protector.