Public Protector Busisiwe Mkhwebane. Picture: Thobile Mathonsi/African News agency/ANA
Public Protector Busisiwe Mkhwebane. Picture: Thobile Mathonsi/African News agency/ANA

Mkhwebane must reveal details of spy agency job - SCA

By Loyiso Sidimba Time of article published Mar 11, 2021

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Johannesburg - DA MPs Glynnis Breytenbach and Werner Horn have succeeded in forcing Public Protector Busisiwe Mkhwebane to reveal details of her application for a job at the State Security Agency (SSA).

The Supreme Court of Appeal (SCA) on Thursday overturned a Western Cape High Court ruling dismissing Breytenbach and Horn’s bid to get access to documents relating to Mkhwebane’s SSA position.

The application relates to the DA’s decision not to support Mkhwebane during her interview for the position of public protector because the official opposition believed that her qualifications and experience made her unsuitable for the job.

The DA questioned why Mkhwebane having been employed by the Department of Home Affairs as a director with a salary of about R1 million annually and was based in China before she was interviewed for the public protector post she changed employment around June 2016 and joined the SSA as an analyst.

SCA judges Mahomed Navsa, Daniel Dlodlo, Caroline Nicholls, Zeenet Carelse and Owen Rogers upheld the DA’s appeal and set aside the high court judgment.

”The applicants (Mkhwebane and her office) in the main application under case number 19668/17 are directed to produce for inspection and copying the first applicant’s (Mkhwebane’s) application for the post of Analyst: domestic branch: DBO1 in the State Security Agency, referred to in “PPSA5” by no later than 1st April 2021,” reads the judges’ ruling.

The judges also directed Breytenbach and Horn to file their answering affidavit by no later than April 16, 2021, and ordered Mkhwebane to pay their legal costs.

In the high court, Mkhwebane also sought an order forcing the DA MPs to retract defamatory remarks concerning her. The comments were made at a press conference and to apologise publicly for their utterances when they said she was an SSA spy.

She told the high court that she was deployed by the Department of Home Affairs to Beijing, China, as councillor: immigration and civic services, but was never on the SSA’s payroll.

Mkhwebane also attached a confirmatory affidavit filed by former SSA director-general Arthur Fraser and stated that the spy agency only appointed her to a higher chief director position.

Fraser confirmed to the high court that Mkhwebane was not employed by the SSA while based in China but only joined the agency from May 2016 until she was appointed Public Protector in October 2016.

The SCA found that Mkhwebane’s application for appointment by the SSA is relevant in that it is bound to contain details of her employment history, including those relative to the time when she was deployed to China.

”The timeline is critical. In my view, that document should be produced by Mkhwebane. The court below erred in concluding that there was no reference to the application for appointment to the post of analyst and that it was irrelevant,” reads the judgment.

Political Bureau

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