Suspended public protector Busisiwe Mkhwebane and advocate Dali Mpofu.(David Harrison/M&G)
Counsel for suspended public protector Busisiwe Mkhwebane on Monday argued for the removal of the evidence leaders in the parliamentary inquiry considering the case for her impeachment.
Advocate Dali Mpofu accused Nazreen Bawa and Ncumisa Mayosi of misconduct, notably for revealing the names of counsel briefed by her to defend her reports on review, along with the fees they earned.
This came as the section 194 inquiry on Monday moved to Mkhwebane’s defence, after the committee concluded hearing evidence supporting the case for her removal from office.
Mpofu prefaced his oral argument for removal of Bawa and Mayosi by again suggesting that acting public protector Kholeka Gcaleka was frustrating Mkhwebane’s defence, this time by failing to ensure staff could avail themselves to testify.
“We have the feeling that, now that the evidence leaders have finished their witnesses, the attitude regarding the witnesses of the public protector has suddenly changed and it goes to the issues that were raised here from day one about the handicaps that go with the fact that the public protector is attending this process under the spell of an illegal, improper and probably criminal suspension,” he said.
This was a reference to Mkhwebane’s legal challenge to the validity of President Cyril Ramaphosa’s decision to suspend her in June. The Western Cape high court found that it was rendered unlawful, and unconstitutional, by bias and the apex court last week heard argument for and against confirmation of the ruling.
Mpofu raised it to suggest, once more, that being barred from her office has hampered her defence.
He said the office of the public protector had a full week to ensure that the first witness on his list was present at the inquiry on Monday morning but appeared to be frustrating the process as by late Sunday evening Thembinkosi Sithole, a manager at legal services in the office of the public protector, had not yet been booked a flight to Cape Town.
About an hour after the committee meeting began, Sithole was still sitting “in limbo”, Mpofu said. Later, he sent an update saying he would board a flight at 2pm.
He further suggested that Gcaleka was one of the five prominent potential witnesses who were reluctant to take the stand in the parliamentary inquiry considering grounds for Mkhwebane’s impeachment.
Others, he said, were Mkhwebane’s predecessor Thuli Madonsela, Public Enterprises Minister Pravin Gordhan and former Democratic Alliance chief whip Natasha Mazzone.
Mpofu said Madonsela had not responded to a request to appear, while Gcaleka indicated an “unwillingness” to appear. Gordhan has responded by way of a lawyer’s letter.
“The long and the short of it is that he is going to indicate, probably this week, what his attitude is,” Mpofu said.
He reiterated his insistence that Ramaphosa should be called to testify, saying this meant there were five recalcitrant witnesses whose participation should be secured.
Mazzone tabled the motion that triggered the section 194 inquiry and had, like Madonsela, failed to respond, Mpofu said, adding: “So, we assume they don’t want to cooperate.”
He said Mazzone, as the sponsor of the motion, would be able to assist the committee as to whether evidence heard about the fees earned by counsel briefed by Mkhwebane was relevant.
The committee was criticised, and not only by Mpofu, for revealing a breakdown of sums earned by the various lawyers. It later corrected the information because the figures were not accurate.
Mazzone’s complaint cited the cost incurred by Mkhwebane as a result of legal challenge to her reports, not the fees of the lawyers involved, Mpofu said, hence she should be asked on the witness stand whether these sums were part of the remit of the inquiry.
The application for the removal of the evidence leaders follows a failed attempt by two opposition parties to bring Bawa to recuse herself. She refused, saying the call for her to do so was based on spurious allegations by an attorney who has acted for Western Cape Judge President John Hlophe.
In his 32-page application for her and Mayosi’s removal, Mpofu argued that they had flouted Mkhwebane’s procedural rights to a fair process under the Constitution, the Promotion of Administrative Justice Act and the rules of the inquiry.
Turning swiftly to their decision to visibly display the names of attorneys and advocates who performed work for the office of the public protector on Mkhwebane’s watch, along with the fees they earned, he said it was malicious.
Mpofu noted that it was made public without warning and without context in a sitting of the committee that was streamed live on the parliamentary YouTube channel.
He suggested that it was disingenuous to lead this evidence through Neels van der Merwe, who assumed a senior position in the legal services department of the public protector’s office only in August.
“The evidence leaders decided to lead the evidence in question from someone who clearly did not have personal knowledge of such evidence. This was bound to be problematic.”
The correct approach would have been to call Sithole, he said, adding that there had been no indication that he was not willing or able to testify on the subject.
But worse, he said, the evidence leaders, as advocates, should have known that their conduct would cause harm to the fellow legal professionals who were named in this manner. He pointed out that the information was flagged in response to a query from DA MP Kevin Mileham, who phrased his question as seeking to establish which counsel had “benefited” from the legal services budget.
“This seemingly malicious disclosure was regrettable, to say the least,” Mpofu said.
“In some instances, the amounts cited were not correct because the evidence leaders did not take time to at least consult the advocates and attorneys concerned for clarity.
“Had they done so, it is reasonable to assume that the inaccuracies would have been avoided.”
He said the lawyers in question experienced harassment and insults after Van der Merwe’s testimony, though it transpired under cross-examination that they had done nothing illegal but accepted a legal brief, as they were ethically bound to, and been paid accordingly.
The publication of the information drew criticism from the Johannesburg Society of Advocates, as well as the Pan African Bar Association of Southern Africa and two of the senior counsel concerned, Muzi Sikhakhane and Vuyani Ngalwana. Mpofu featured on the list and, once corrected, it showed he had earned more than R13 million. One of the mistakes Bawa acknowledged was that payments made to him were incorrectly attributed to Sikhakhane.
Mpofu stressed that, even if the committee needed to be informed of the fees earned by counsel, their names should have been omitted.
But it was doubtful that the fees were relevant in the first place, Mpofu said, and here clarity was needed from Mazzone.
He submitted that evidence leaders, unlike prosecutors, were not allowed to conduct themselves in an adversarial manner but that events showed Bawa and Mayosi would do anything “by hook or crook” to ensure that Mkhwebane was impeached.
“Further misconduct includes at least four witnesses who testified or displayed that their witness statements were written and spoon-fed by the evidence leaders.”
Bawa had also broken the rules by cross-examining a witness, Mpofu argued, when evidence leaders were not allowed to do so. The fact that he raised this issue suggests that he will later seek to bar the evidence leaders from cross-examining Mkhwebane on her eventual testimony.
The committee is due to resume on Tuesday. It will deliberate on the application in the morning and probably hear Sithole’s testimony in the afternoon.
Monday’s sitting ended in now familiar fashion with Mpofu demanding more time to argue the application. He was cut short by chairman Qubudile Dyantyi who adjourned the meeting. Before he did so, he expressed his unhappiness that the evidence leaders’ response to the allegations in Mkhwebane’s application had not been sent to her legal team.
This was not fair, and should be remedied, he said. Mkhwebane’s lawyers should receive it on Monday afternoon and be allowed to respond in writing.
Madonsela is on record as saying she would assist the inquiry if called upon to do so.
The committee made clear in August that it would not subpoena Ramaphosa to testify. Her legal team then wrote to him to ask that he agree to appear but the president declined.
The decision as to whether a witness should be subpoenaed lies with the committee. Mpofu can file an application to compel them to call a particular person to testify but, should the committee refuse, his only recourse would be to court. However, here he would have to prove that either proper process was not followed or that the reason advanced was beyond the scope of the inquiry.
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