Suspended public protector Busisiwe Mkhwebane. (Jaco Marais/Foto24/Gallo Images)
Suspended public protector Busisiwe Mkhwebane on Monday cautioned parliament that until money was found to cover her legal fees, it would proceed with her impeachment inquiry at its peril.
The warning came after Richard Dyantyi, the chairman of the section 194 inquiry into her fitness for office, said MPs and evidence leaders would engage with Mkhwebane’s testimony to the committee last week.
It would, evidence leader Nazreen Bawa explained, mull over her evidence with reference to court records and rulings on her reports on donations to the CR17 campaign and the “rogue” intelligence unit within the South African Revenue Service, a narrative since debunked on every front.
Dyantyi said new evidence would not be led until Mkhwebane had legal representation again, nor would there be cross-examination, but the committee could not afford to lose time by postponing the process entirely.
“The [public protector] is not going to be asked any questions today or tomorrow but the work that must happen is to invite evidence leaders to do what they would in any case do when they take the platform,” Dyantyi said.
“There is an issue of procedural fairness and doing things within reasonable time. That is always the issue that we have got to balance. There is no intention for us to waste any time going forward, even as we await the outcome of those interventions on finances.”
This drew considerable objection, the strongest coming from Mkhwebane herself.
“I am here, I am alone, I don’t have my legal representation and, chairperson, as this committee, you are obliged to act according to what the constitutional court has said,” she said, referring to an apex court ruling that she was allowed to brief lawyers to assist her.
Mkhwebane said that her legal team was supposed to help her record points raised by the evidence leaders, as she would have to respond to these later.
And parliament would also do well to remember, she added, that since the start of the section 194 process, she had repeatedly challenged it in court.
“So, I think for your sake and for the sake of the committee and of parliament, that would be better if the chairperson makes sure that we work and we get the resources so that we can proceed with the legal team.
“The process cannot continue.
“I’ve put it on record that whatever you are doing, it is very much unfair. Actually, what would be fair for you, is all hands on deck to find the resources so that we can proceed in a proper manner.”
She noted that Bawa and other evidence leaders were paid with public money and said there was no reason why she could not be granted funding for her defence as the process continued.
The impasse arises from a decision acting public protector Kholeka Gcaleka conveyed weeks ago not to fund Mkhwebane’s legal representation in the inquiry beyond the end of March.
It had so far spent R26.2 million on her legal challenges to the process, and her representation in the inquiry, in the 2022/23 financial year. This excluded Mkhwebane’s legal fees for March, Gcaleka said, before warning that, as a result, the chapter nine institution was bound to exceed its budget for legal services.
This was despite the justice department having given it an extra R20 million.
“The reality, however, is that even with the financial assistance from the Department of Justice and Correctional Services, the PPSA is unlikely to avoid an over-expenditure on its legal services budget to the amount of at least R1 937 226.54, to which the legal fees for the Section 194 proceedings, for the period of March 2023, must still be added
Gcaleka said the institution would also no longer foot the bill for Mkhwebane’s defence in a perjury case in which she is accused of having been dishonest with the court in litigation that arose from her Bankorp-CIEX report in which she exceeded her mandate to recommend that the mandate of the South African Reserve Bank be amended.
Mkhwebane, despite this notice, sought to postpone her testimony to the committee and to extend the list of witnesses she would call. The committee refused, and she began testifying on 15 March, before taking sick leave.
Her testimony resumed last Tuesday and continued until Friday, when her lawyer, advocate Dali Mpofu, told the committee that his brief was at an end because his client had been denied further legal support.
In her testimony, Mkhwebane told the committee that she stood by her findings in the report on the CR17 campaign, which included a recommendation that President Cyril Ramaphosa be investigated for money laundering.
Scrutinising the donations to his campaign to become president of the ANC led one to the conclusion that these pointed to a risk “of some sort of state capture”, she insisted.
Ramaphosa successfully challenged the report in the high court.
The constitutional court upheld that ruling, agreeing that she had made grave errors in fact and law but went further to remark that some of these could not have been made innocently. Mkhwebane applied for rescission, but was denied, and then lodged a complaint against now retired justice Chris Jafta.
Bawa, reading from the court record on Monday, said in applying for rescission Mkhwebane had said she was taking this extraordinary step because the court had committed a “patent error” regarding the executive ethics code.
It was the first time in the course of the litigation that this argument had been raised, Bawa said, and it was wrong because there was no doubt that the court had relied on the correct version of the code, as enshrined in law.
Last week, Dyantyi nodded to the likelihood that Mkhwebane would turn to the courts, should the committee proceed with its work, saying henceforth everything that happened would be a matter of “risk management”.
United Democratic Movement leader Bantu Holomisa on Monday proposed that the committee call on parliamentary legal advisors to determine whether or not the process could lawfully proceed.
Dyantyi said this was unnecessary but, after a wealth of further objections from opposition MPs, eventually called on Fatima Ebrahim, the committee’s legal advisor, to pronounce on the issues raised.
Ebrahim said the fact that the committee had elected to use evidence leaders did not make the process a quasi-judicial one or a trial. She said while it would be optimal if Mkhwebane’s lawyers could be present, there was no prejudice to her if Bawa continued to take the committee through the court rulings in question.
She stressed that the evidence leaders’ role was a neutral one, being to assist the members, not to prosecute Mkhwebane.
Holomisa, African Transformation Movement leader Vuyo Zungula and other members of the committee argued, incorrectly, that the constitutional court had ruled that Mkhwebane had a right to funding for her legal expenses.
The court did not, it merely held that she had the right to legal representation.
The committee is trying to conclude its work by May. Mkhwebane’s seven-year term expires in October.