Mkhwebane acquittal does not end LPC bid to strike her from advocates’ roll - IOL

Public Protector Advocate Busisiwe Mkhwebane. Picture: Oupa Mokoena/African News Agency (ANA) Former Public Protector Advocate Busisiwe Mkhwebane's foundation has accused Accountability Now and OUTA of being hell-bent on destroying her .

The Legal Practice Council (LPC) said only the High Court has the power to decide whether former public protector Busisiwe Mkhwebane, who was acquitted by the court of perjury charges this week due to lack of evidence, is still fit to be an advocate. 

The Pretoria Magistrate's Court this week acquitted Mkhwebane on the perjury charges related to her investigation into Absa/Bankorp receiving funding from the South African Reserve Bank during apartheid.

Accountability Now had laid criminal charges against Mkhwebane after the Constitutional Court had ruled that she had lied in saying she did not discuss the ABSA/Bankorp report with then-president Jacob Zuma.    

LPC Gauteng director Ignatius Briel said the role of the LPC, as the officers of the court regulatory body, is to furnish information for the court, which will then decide whether a person is still suitable to remain as an officer of court.

The LPC applied to the Gauteng High Court to have Mkhwebane struck off.  

“The matter of Advocate Mkhwebane will still be considered by the court. 

“She will have an opportunity to present her side and the court will make the final determination. 

“The court will make its decision based on all the information before it, and this may include the recent outcome of her case,” said Briel.

He said Mkhwebane has responded to the LPC’s application and the LPC is now preparing its replying affidavit, after which the matter will be set down for consideration.  

“The allegations against Adv Mkhwebane were not limited to the Bankorp matter. In any event, an acquittal in a criminal matter does not necessarily invalidate the complaint against her, since the Court in the striking application will still consider the facts and apply the necessary legal principles for consideration of her fit and proper status, which principles are different from the legal principles applied in criminal matters,” he said.

While accepting the acquittal, Organisation Undoing Tax Abuse (Outa), which together with Accountability Now supported perjury charges against Mkhwebane, accepted the magistrates court’s decision, but still wants action taken against her. 

Outa’s director Adv Stefannie Fick said the organisation was pinning its hope on the LPC process to get Mkhwebane stripped of the status of being an advocate. 

She said although striking Mkhwebane from the roll of advocates sounds harsh this was required as the country lacks accountability.

“We are struggling with corruption, with people not being held accountable.

“Unfortunately for Adv Mkhwebane, she is an advocate, and advocates’ behaviour must be above reproach, and for what she did in that matter, she should not be able to practise as an advocate,” said Fick. 

Accountability Now director Advocate Paul Hoffman said the acquittal means nothing, as the objective of removing her as public protector and member of Parliament has already been achieved.

“I could not be bothered because since we laid the charges, she has left Parliament and been kicked out of the office of the Public Protector. 

“The objective of the exercise (laying charges) was to make sure that she is not in a position to exercise public power, and she is not in such a position anymore,” said Hoffman.

The Busisiwe Mkhwebane Foundation (BMF) accused Outa and Accountability Now of waging a personal vendetta aimed at destroying Mkhwebane’s career at all costs.

“The whole aim of taking her to court was to vilify her and tarnish her name so that no one will pay attention to what she said and did,” said BMF chairperson Shirley Willemse.

She said Mkhwebane’s removal as an advocate does not matter much because she is no longer a practising advocate.

“She has never been a practising advocate. It is just an attempt to continue tarnishing her name,” she said.

Willemse said Mkhwebane's adversaries achieved their objective when they successfully removed her as Public Protector. 

Willemse said Mkhwebane’s acquittal brought an end to a long-running criminal case arising from her investigation into the Absa/Bankorp matter.

“This marks the closing of a painful and difficult legal chapter.

“We, as the BMF, reiterate that for years, Adv Mkhwebane has endured intense public scrutiny, political controversy, parliamentary proceedings, litigation, criminal prosecution and personal hardship, yet she remained standing.

“She continued to speak for accountability, vulnerable communities and ordinary South Africans who often struggle to make their voices heard.

“Her journey is a reminder that being wounded does not mean being defeated,” she said.

Willemse said the Absa/Bankorp controversy was part of wider legal and parliamentary battles surrounding Mkhwebane's tenure as public protector, “including the Section 194 parliamentary process that ultimately resulted in her removal from office in 2023”.

“She also endured significant litigation and personal financial consequences arising from the Absa/Bankorp litigation, including the Constitutional Court's 2019 personal costs order,” she said.

She described Mkhwebane as a woman who suffered the consequences of holding public institutions, powerful corporations, political formations and individuals accountable to the Constitution.

“The Absa/Bankorp investigation raised profound questions about public power, economic interests and accountability. 

“Those questions remain part of South Africa's institutional history,” said Willemse.