DA and Mkhwebane square up over claims she was a ‘state-capture spy’

The courts will hear an appeal by the DA related to public protector Busisiwe Mkhwebane’s case against the party and its MPs Glynnis Breytenbach and Werner Horn for suggesting more than three years ago that she was a spy appointed to perpetuate the “state capture” of the office of the watchdog by then-president Jacob Zuma.

Mkhwebane says she is not seeking monetary damages from the DA, but wants the party and its MPs to retract and apologise for their allegations, which she says have tarnished her and her office’s dignity and made it difficult for South Africans to trust her.

Defamation case

Mkhwebane, whose competence, honesty, independence and understanding of her position have been the subject of multiple scathing court judgments, initially launched her defamation case against the DA and its MPs in October 2017.

Since then, she has been repeatedly accused of acting with bias and ulterior purpose by, among others, President Cyril Ramaphosa and public enterprises minister Pravin Gordhan. Both have questioned the sources of evidence in her damning reports against them, which seem to include confidential

e-mails and an intelligence report.

This case will no doubt fan the flames of evident suspicion about her alleged connection to intelligence structures.

The DA says in this case that Mkhwebane failed to hand over crucial documents related to her employment history, which includes a 2009 deployment to the department of home affairs office in Beijing by then minister Nkosazana Dlamini-Zuma and her brief stint as an analyst for the State Security Agency.

The party failed to convince the Western Cape High Court to compel Mkhwebane to hand over the documents they seek and which she has refused to provide to them. The party is arguing that it needs the documents to defend its case against Mkhwebane.

Those documents include the parliamentary committee report recommending Mkhwebane’s appointment as public protector, her employment application to the State Security Agency and confirmation of her acceptance of the analyst position — which she held for less than two months before being nominated to replace advocate Thuli Madonsela as public protector.

The DA contends that it, Breytenbach and Werner require these documents to address whether Mkhwebane was on the payroll of the State Security Agency, what functions she performed in that capacity, if she “ever performed the work of a spy” and if she was “appointed as the public protector at the instance or with the support of then president Zuma or persons politically aligned with him”.

Judge Taswell Papier previously ruled that it would be “inappropriate” and “illogical” to rely on these documents to prove the truthfulness of the spy claims against Mkhwebane — a decision that DA lawyer Elzanne Jonker argues is legally flawed.

The DA will apply to appeal against the Papier decision on November 1.

Mkhwebane argued in 2017 that the spy allegations made against her during a September 2016 DA press conference “were meant to taint my good name and convey to the public that I was not fit and proper to be appointed as public protector”.

During that DA briefing Breytenbach stated that Mkhwebane’s appointment would be “unreasonable as she was by no means the best candidate for the position and was illogically preferred over other qualifying candidates”.

Pointing to Mkhwebane’s apparent willingness to be demoted from her post at home affairs so she could work for the State Security Agency, Breytenbach said “the ineluctable conclusion is unfortunately that Adv Mkhwebane is on the payroll of the SSA”.

This, she said, was “even more problematic” given the view at the time that Zuma was “abusing ... the State Security Agency in particular to hang on to power at all costs”.

The remarks, Mkhwebane said, were intended to convey to the public that she continued to be on the State Security Agency’s payroll and was “not independent as I am intricately connected to the state president (Zuma) who is allegedly abusing the State Security Agency”.

Mkhwebane says she has “no other reasonable inference to draw other than these allegations were made as a veiled attempt to destroy my career and most cunningly to destabilise the office of the public protector”.