Another Parly Manoeuvring to Stop Justice and Transformation

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Sibusiso Nyembe SC says the DA’s request for the institution of removal proceedings against  Public Protector Advocate Busisiwe Mkhwebane is one of a series of tactics meant to intimidate and instil fear in the PP so that she stays away from the CIEX Report, which exposes billions stolen from the public purse, with the help of the South African Reserve Bank, in the years leading up to the democratic dispensation. 

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Advocate Busisiwe Mkhwebane

At the core of our Constitution are the values of fairness; non racialism and Separation of Powers doctrine as the cornerstone of our Constitutional Democracy.

The Portfolio Committee on Justice and Correctional Services (“JCSP”) has yesterday, on instigation by the Democratic Alliance (“DA”), agreed to hold an inquiry into the request to remove the Public Protector (“PP”).

Background

It is important to remind ourselves that the DA was the only party that didn’t support the appointment of Ms Busisiwe Mkhwebane and even denigrated her by calling her a spy.

Also important to mention is that the PP recently laid a criminal charge against a Senior DA member for leaking a confidential report by the PP office.

However, in my view it is the CIEX matter and the litigation unfolding over it, that I believe is at the root of the present DA manoeuvring. The PP is being accused of “irrationality” on several grounds among which are that;

(i)              she got her facts wrongs;

(ii)            the facts upon which she based her findings are prescribed;

(iii)           she lacks jurisdiction to investigate the matter;

(iv)           in reaching her conclusions and remedial actions she was procedurally unfair; etc.

Fairness

The Office of the Public Protector is a Chapter 9 institution. Institutions under this chapter are designed to strengthen constitutional democracy.

Therefore the PP is by law expected to execute her mandate with fairness, without fear, favour and/or prejudice. When there is no fear on the part of the PP it is believed there will be fairness and objectivity in the conduct of her business and in the judgments and decisions she makes. Fairness is devoid of favour and prejudice.

Overlooking an investigation of a complaint; deliberately delaying finalising investigations and reporting on them as enjoined by Public Protector Act can be seen as favoritism to others and may lead to prejudice to another.

Since releasing her CIEX Report on the 19 June this year, the PP has never known peace. She has been subjected to a barrage of media attacks; her qualifications questioned; issued with several court actions; all with the intention to intimidate and instil fear in her so as to scare her away from the CIEX matter.

The CIEX complaint was brought to the PP office in November 2010 and has remained pending until the appointment of Ms Busisiwe Mkhwebane. At the heart of this matter is the looting of public resources orchestrated via South African Reserve Bank (“SARB”) during the twilight of Apartheid.

Perhaps because of “low intensity intimidation”, possibly instilled against the former PP Ms Thulisiwe Madonsela, the perpetrators and/or beneficiaries of the loot were able to suppress the investigation of the CIEX complaint and delay its finalisation. Barely 12 months into office Ms Mkhwebane has been able to render the final report into this matter, of course on the basis of extensive work done by her predecessor, but surely a sign of great fearlessness on her part!

Despite all the aforementioned forms of intimidation mounted against her, Ms Mkhwebane has not relented in her pursuit of jusitce for the South African people. All she did was to strategically concede in an urgent court application that was spearheaded by SARB decrying alleged overreach in her proposal that constitutional changes to the SARB mandate be considered. Indeed that concession was strategic because that urgent court application sought to divert attention from important issues of the CIEX Report, but, at the same time it took the intimidation tactic to a higher level – the court. It is clear to discern intimidation when reading the 15 August judgment in the matter by Judge JR Murphy. Here’s the judgement http://www.saflii.org/za/cases/ZAGPPHC/2017/443.html

Surely Ms Mkhwebane is not intimidated because she hasn’t conceded in the other cases and the public is keenly awaiting her consolidated Answering Affidavit, (responding to all the review cases by SARB; ABSA and National Treasury), due towards the end of this October month. And, this is precisely what the perpetrators/beneficiaries of the loot don’t want to see happening, for they fear exposition of damning information on how the looting was carried out and why the court should dismiss their review application. Hence these desperate moves to discredit the PP, the latest being the removal inquiry, which are none other than taking the intimidation tactic to a higher level  – Parliament! This is just to harass and discredit the PP before the unsuspecting eye of the public, for the DA knows very well how hopeless their attempt at her removal is!

Non Racialism

Our Constitution guarantees non racialism. However we now know, through observation that any action by any constitutional body / government functionay / ordinary person directed at redressing grievance by and advancing Black interest is met with stern opposition. The sitting President is a good example in this regard. When he made a decisive break between the interests of White Monopoly Capital and those of poor Black majority by calling for land expropriation and Radical Economic Transformation (“RET”) policies, we saw the intensification of efforts at removing him from the Presidency. Of course those efforts at unseating him had long been in place. The President, from day one was not trusted, as is the case with this PP.

Mr Hlaudi Motsoeneng is today out of the SABC and his worst offence was to prioritise the commercial interests of South african artists. We can mention a long list of prominent and unsung heroes of our revolution that were wrongly removed from positions of authority and power. Black economic emancipation/advancement is not sine qua non for White subjugation/regress/stagnation. It is viewed as threatening White privilege.

The PP is facing the same fate today. The PP is not confused about who she is; does not by conduct aspire to be somebody/something else than what she authentically is.

Any Black incumbent of a powerful position is correct and celebrated as long as (s)he uses that power to maintain the status quo that ensures White supremacy and privilege. Therefore, from the standpoint of those resisting transformation the Constitution is okay when it is used to quell any Black aspirations for a better life for all.

Thus the non racialism guaranteed by our Constitution is a pipedream for the majority, and, whoever tries to initiate steps towards realisation of same, like PP has done since ascending office, is dealt with accordingly and by any means possible – by the forces who see the demise of their privilege and dominance when favouritism and racial biasness is resolutely challenged!

Separation of Powers

The principle of Separation of Powers requires constitutionally established institutions to respect the confines of their own powers and not intrude into the domain of others.

Pertaining the removal of the PP, the DA proposal is allegedly based on the reason that “she overrreached her powers in the SARB and the ABSA/Bankorp matter“.

Now, although the Murphy judgment case which set aside the remedial action 7.2 (which was about the amendment of the SARB Constitutional mandate) was instituted as a separate application with its case number, and, to which the PP conceded, the reality of the story is that the whole CIEX Report court issues are sub judice before the justice system, a judicial arm of the state bound by the separation of powers doctrine. They are so because all consolidated high court cases flowing from the PP CIEX Report of the 19 June 2017, in which the bulk of the issues (including issues pertaining to the SARB mandate and the manner it was exercised in the ABSA/Bankorp lifeboat) still remain to be determined by the court. That being the case is it therefore not true that:

  1. the Parliament’s deliberations on the DA proposal violate the doctrine of the                                    separation of powers guaranteed by section 1 (c) of the Constitution;
  2. the Parliament’s deliberatios on the DA proposal will have an effect of                                                     intimidating the PP thereby negatively affect her legislative obligation to exercise                                her powers without fear, favour and/or prejudice?

It is important to point out that the PP is still to file her comprehensive response, in the form of an Answering Affidavit, to the consolidated cases, which response is due towards the end of October. How then does our esteemed PP freely, without fear, favour and/or prejudice attest to the pending Answering Affidavit, in the light of this onslaught against her, now through Parliament platform?

Therefore it can be concluded that the entertainment by Parliament of the proposal by DA to have PP removed while the CIEX court cases are pending in another arm of the state – the judiciary – shall certainly offend the principle of separation of powers. Further, such entertainiment of the DA proposal will inhibit fearless execution of legislative mandate of the PP.

Further, it should here be mentioned that it is doubtful whether the Committee has locus standi on the functional work by the PP. Already the Chairperson of the Committee Dr Mathole Motshekga has expressed his concerns whether Committe is the right forum and competent authority to deal with inquiry into the request to remove PP. This may be outright interference with the independence of the PP!

Conclusion

The issue about the Deputy PP which forms the second aspect of the DA proposal is a disguise of the malice haboured against PP, (the actual DA’s target) and intended to give credence and innocence to DA’s mischief.

The insistence that the initial application (that was concluded by Murphy judgment) be argued in open court and full judgment be given thereto despite the PP concession, and despite exhorbitant costs associated with appearing in court, aroused suspicions on our part. It indeed boggled the mind why court resources had to be wasted; top lawyers convened for arguments when the Respondent (PP) had timeously conceded, where objectively the bulk of the issues still remained before court as they are today and thus a chance to have a bite on any issue not foreclosed. Today’s reliance by DA on that judgment to have the PP removed from office confirms our initial suspicions. It is clear that the PP’s mero motu concession was not going to be enough and appropriate for future use against her, therefore judgment by a court was needed to lend it semblence of an objective finding.

This move to have Parliament inquire into the PP fitness to hold office is nothing but a scare-tactic to stop the PP “in her tracks” from “causing extensive damage” by exposing apartheid illegal and highly protected secrets. It is also an attempt to elicit information about how far she’s gone in uncovering critical information, in the process of preparing her Answering Affidavit – the recent media attacks having failed to get her volunteering such.

Like previous similar tactics by the opponents of transformation this one too will fail spectacularly.

Nyembe SC is a member of the group Lawyers for Radical Economic Transformation (LawRET)

8 Comments on "Another Parly Manoeuvring to Stop Justice and Transformation"

  1. Thanks Sibusiso Nyembe for the article. We are comforted by the fact that our PP is unfazed in the mission to expose all evil which wmc has meted against Blacks.

  2. Absa’s liability to pay has been already found by Judge Dennis.

    All that Mkhwebane did was to enforce payment.

    She has said it over and over that she did not make any determination of whether ABSA is liable or not Because that determination has already been made.

    All she did was question why a payment arrangement was not put in place to help ABSA pay back the money.

  3. Jeff Koorbanally | October 15, 2017 at 12:26 pm | Reply

    I call on all members of Lawyers for Radical Economic Transformation (LawRET)

    To stand behind Adv Busisiwe Mkhwebane (PP)in her fight against this fabricated & well planned witch hunt!

  4. Jeff Koorbanally | October 15, 2017 at 12:30 pm | Reply

    Dear Dr Mathole Motshekga

    I write this letter to you and all members of the Committee in my capacity as a concerned member of the public.

    It is my submission that the inquiry into the fitness of the Public Protector may be a witch hunt to protect the biggest financial crime/economic terrorism sabotage committed by the Sarb under the reigns of both Dr de Kock & Chris Stals, in conjunction with Absa..

    For the purpose of understanding my involvement in this matter
    I make reference to this link
    http://uncensoredopinion.co.za/open-letter-thuli-madonsela-jeff-koorbanally-forensic-investigator-absa-bonds/

    Attached in this mail is a 5 page PDF document sent to the Chairman & board members of BASA.

    I urge all of you to read this document in order to understand what the public protector was dealing with when she made an error of overreach in her recommendation on the Ciex report.

    While we all agree that Her recommendation constituted to an act of overreached, they cannot be disregarded, disputed or ignored.

    This is a very serious matter ! More specific to the fact that the Sarb is an independent institution. Their mandate needs to be extended to include the interest of the citizens of this country.

    Other countries do it, why not us?

    Thanking you.

    Sincerely
    Jeff Koorbanally

  5. Jeff Koorbanally | October 15, 2017 at 12:32 pm | Reply

    Dear Dr Mathole Motshekga

    I further wish to state that the submission of the facts on my PDF document to BASA, was done in my capacity as the Financial forensic investigator/auditor.

    I stand by these facts, & have given it to the law enforcement in a form of sworn affidavit.

    I further wish to unreservedly & unconditionally make myself available to testify before this committee, should I be required to do so.

    All implicated people named & shamed in my submission can also have an opportunity to defend themselves, so that the real state capture/economic terrorism done warfare style can be revealed & dealt with.

    The public protector cannot be investigated into her fitness to hold office purely on the basis of people who are conflicted and are accomplices reviewing her findings on the Ciex report.

    The Ciex was never limited to the absa lifeboat, it was phase 1 or just a tip of the iceberg.

    The people reviewing the PP findings

    *Maria Ramos (Absa)
    *Lesetja.Kganyago (Sarb)

    *Treasury/Finance Ministry

    Are all abusing their powers in the institutions they represent., a clear mockery & abuse of our judicial system.

    All these people are part of this serious crime! Therefore their review application constitute to conflict of interest or self protection.

    Am currently investigating corruption in the Free State Province on behalf of COGTA, it is therefore my humble request that I be informed in advance should i be required to testify in front of this committee & my traveling expenses from Bloemfontein & return will need to be covered.

    Jeff Koorbanally.

  6. Jeff Koorbanally | October 15, 2017 at 12:34 pm | Reply

    Dear Dr Mathole Motshekga(Justice & Correctional Committee Rsa National Assembly)

    My final submission in the interest of justice to avoid any form of prejudice against any party.

    It would therefore be my humble request that this committee subpoena all implicated in this serious crime which has potential to bring the country down.

    More names can be revealed to include but not limited to:

    *Hon Thabo Mbeki, *Trevor Manual,
    *Tito Mboweni,
    *Gill Marcus.

    To add to the list are vital key independent witnesses whom I had the privilege to interview,namely:

    *Acting Judge Willem Heath (in his capacity as head of SIU)

    *Adv Dube Tshidi & Adv Cuthbert Chanetsa (Ceo & Deputy of FSB)

    * Michael Duerr, Nicholas Lang, Marius Pretorius ( Sarb private shareholder)

    *Tom Moyane (Sars Commissioner)

    *Minister Cwele & Minister Mthethwa ( ex Ssa & Saps)

    Let me briefly deal with individual above mentioned witnesses.

    1)Judge Willem Heath
    will testify that Hon Mbeki instructed him to stop the investigation & stop any further cooperation with the british investigating team (Ciex). Most importantly he will testify as to why the Bonds given to Absa( being the crucial instrument of this crime) were excluded from the inquiry, he will state who instructed him to exclude them & the reason cited to him.(Shocking revalation)

    This was in contrary & in conflict

    #to the Special Investigating Units and Special Tribunal Act, Act no. 74 of 1996 (SIU Act) to investigate corruption and mal administration in the public sector.
    And
    Its independence as statutory body that is accountable to both the President and Parliament in terms of its activities.

    The unprecedented instruction of Hon Mbeki was also in conflict of Proclamation R47 of 1998
    Which authorized & gave power to SIu to investigate, litigate (civil matters) and refer matters (criminal and disciplinary) to other state agencies. These other agencies which has power to arrest or prosecute matters of a criminal nature and they include the National Prosecuting Authority (NPA) and the South African Police Services (SAPS).

    2. Adv Tshidi. & Adv Chanetsa (FSB)

    The two will testify that the said bonds were in fact in the possession of absa, as Absa was the trading broker together with UBS.

    They will further disclose the billions earned by Absa in terms of broker fees & commissions.

    They will further testify that account antrecode 0000/4444 (state account) was used as a trading account.

    Most importantly they will testify that these bonds imposed a huge liability to the current government, which prejudiced the poor citizens of this country from basic needs & basic service delivery.

    Which was as a result of accepting these bond. The current Government paid approx R870 billion (interest & capital 1996-2010) of public funds for the apartheid looting that took place 1985-1994!

    3. Michael Duerr , Nicholas Lang, Marius Pretorius ( Sarb private shareholder)

    These shareholders will testify as to why they were so disgruntled by what was going on at the Sarb that which in them calling for this institution to be nationalized!

    Let me focus on Michael Duerr, being one of the major private share holder of Sarb, out of 8 families that holds combined 262100 shares, the Duerr family owns 57% thereof.

    Michael Duerr was the first person to whom the Ciex report was leaked to in 2010 (when it first surfaced).

    The purpose was for verification of its findings.

    Michael Duerr was able to confirm that:

    Absa was favored by the sarb, as they were used for illegal financial out flow (illicit)

    Absa`s so called lifeboat was in fact a gift never a loan!

    Most importantly he confirmed the existence of secret accounts which back dated to 1985. Which were kept secret and never declared to the Democratic Government, when he confronted Tito Mboweni in 2009 to question him about these accounts and who’s money this was? as the shareholders were not being paid any dividend on it, he was never given answers, when Gill Marcus took over Duerr confronted her in 2010 with the same question. Instead of an answer Gill Marcus & Pravin Gordhan rushed an amendment of the Sarb Act that gagged the private share holders from involvement in the running of the reserve bank, at the time of Duerr question of who’s money this was, the reserve bank was showing a asset listing of R329 billion of which was more than impossible for Sarb to have accumulated, as the Sarb is a non profit institution.

    This amount has grown from R329 billion (2009 to be R570 billion. (2017)
    Ref to Sarb financial report 2017.

    The above is profit of crimes from the same bonds, in terms of spreads and commissions as Sarb was the underwriter of these bonds.

    4. Mr Tom Moyane (Sars Commissioner)

    He will testify that there are no records on Sars revenue register of any money paid or declared since the change of government to date.

    He will further testify that from 1996 when these bonds were registered with BESA & put on trading markets,there is no record of declaration of PAR (Capital paid) on these bonds as it would have been standard legal procedure & neither was there any declaration of income on the Yield(interest) by the owner of these bonds (whether real or bogus)
    Thus tax evasion was committed, with the help or permission of treasury/finance ministry custodian of the three way trading contract on these bonds. Which is compulsory by laws & regulation to have.

    5. Minister Cwele & Minister Mthethwa ( ex Ssa & Saps)

    Both Hon Ministers will testify that the matter was brought to their both attention & that they attempted to resolve it but were restricted due to jurisdiction limitation which were limited to Finance Minister.

    I end up with crucial unanswered questions:

    What’s the real deal?

    Why is treasury/finance ministry failing to address this matter which is within their jurisdiction? Are they maybe captured?

    Why is Parliament failing or refusing to deal with this serious mater?
    This matter was referred to both SCOPA (Godi) & Finance Committee (Cassim) whereby a request to call Treasury/Finance Ministry, FSB, & Sarb to account on the sabotage..

    As a result of being deliberately blocked to access the President on this matter.

    I took the matter to the head of government business (Chairman of National Assembly) Hon Deputy President Cyril Ramaphosa.

    He also failed to address it! He said the President need to deal with it as he is the Head of Government!

    I have never heard such garbage in my 64 years of age & especially coming from the second in charge of a country! He too must be subpoenaed.

    I attach contact details of mentioned non governmental witnesses

    Jeff Koorbanally

  7. Jeff Koorbanally | October 17, 2017 at 10:54 am | Reply

    Note!
    South Africa as a Sovereign Country is registered as a Corporate Company with all the international Security Commissions & Associated Bodies.

    “REPUBLIC OF SOUTH AFRICA CIK#: 0000932419”.

    I therefore trust that you all will not fall prey to the wrong conception, And look into the matter from the south african context ( laws)

    International cooperation in this Sector.

    All country`s financial regulators are members of the International Organization of Securities Commissions (IOSCO),
    RSA is member through FSB.

    The main way that securities commission cooperate is through the IOSCO Memorandum of Understanding, and through bilateral agreements between securities commissions.

    By the virtue of the above, this sector is governed by international laws, rules & regulations, rather than being limited to Rsa laws.

    As these bonds violated both the Us & UK stock exchange we had no choice but to bring the matter to their attention, they advised that the matter be reported to IOSCO as well.

    David Wright then IOSCO secretary general, asked in 2013 if the matter was reported to FSB as the seriousness & dire consequences of these aggression will lead to the expulsion of RSA as member, and heavy penalties imposed & criminal proceedings.

    At the time I had not done so, but agreed to withdraw my complain till such time FSB has been given an opportunity to resolve the matter.

    FSB continues to cite jurisdictions restriction of investigating, in the S.A. Legal Context.

    Missing the point that they (FSB). Represent REPUBLIC OF SOUTH AFRICA CIK#: 0000932419. In these international governing bodies.

    This make the country vulnerable to all kinds of international lawsuits, sanctions & expulsions of membership to trade with sovereign bonds.

  8. Jeff Koorbanally | October 20, 2017 at 3:27 pm | Reply

    FSB S.A. Jurisdiction, Power & Authority in the South African context.

    The Financial Services Board (FSB) is the government of South Africa financial regulatory agency responsible for the non-banking financial services industry in South Africa. It is an independent body that supervises and regulates the financial services industry in the public interest. This includes the regulation of the biggest stock exchange in Africa the Johannesburg Stock Exchange

    The FSB was established in 1991

    A number of additional acts have expanded and increased the role of the FSB. These include;

    In September 2004, the Financial Advisory and Intermediary Services Act (FAIS) expanded the mandate of the FSB to include aspects of market conduct in the banking industry.

    Financial Intelligence Centre Act (2001) and subsequent amendments have added responsibilities to the FSB to combat money laundering.

    Responsibilities and functions

    It is responsible for all non-bank financial intermediaries, this includes;

    Capital Markets
    Collective Investment Schemes
    Financial Services Provider
    Insurers
    Re-insurers, short and long-term
    Lloyd’s correspondents
    Other Credit Agents
    Nominee Companies
    Retirement Funds
    Friendly Societies
    It is responsible for ensuring that the regulated entities comply with the relevant legislation as well as capital adequacy requirements to promote financial soundness of these entities and thereby protecting the investing community.

    “It has enforcement powers to deal with breaches through the enforcement committee. The Committee may impose unlimited penalties, compensation orders and cost orders.
    Such orders are enforceable as if it was a judgment of the Supreme Court of South Africa”.

    It is therefore my strongest submission that FSB has the jurisdiction to address this serious matter.

    It is my further submission that FSB is accountable to parliament/Government,hence this committee has to full power to instruct them to account and demand from them to present all the info on these bonds:

    # Who issued these bonds? & when?

    #Who was the investor on these bonds? & source of those funds?

    # To whom was the capital investment paid & proof thereof.

    # to whom was the interest 1996-2010 & capital on maturity dates paid?

    # What is the total benefits these bonds has enriched Absa & UBS as brokers?

    # What is the total benefit these bonds has enriched Sarb, as underwriters?

    Parliament can instruct FSB to recover all these unduly benefits from these institutions & further impose relevant penalties.

    As I’ve already emphasized the seriousness of these matter from the international context, failure by Parliament to take the above appropriate action will have dire consequences for the country & its entire banking sector!

    I place on record that I demanded this from FSB! The response I got from both Ceo & Deputy was:
    “Only Parliament can request or demand such ”

    I forwarded that response together with my submission to SCOPA.

    Jeff koorbanally

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