Former public protector Busisiwe Mkhwebane. (Leila Dougan/Daily Maverick/Gallo Images)
The ballooning of suspended public protector Busisiwe Mkhwebane’s legal fees to more than R30 million, and questions about who should fund her defence in a parliamentary inquiry has stalled the hearing by a week.
On Monday, Richard Dyantyi, the chairperson of the section 194 inquiry parliamentary committee into Mkhwebane’s fitness to hold the public protector office, adjourned the meeting to the same day next week after the latter arrived at the inquiry without a legal team.
Acting public protector Kholeka Gcaleka told Mkhwebane in a letter in March that the office could not fund her defence at the inquiry beyond the end of that month, which marked the end of the office’s financial year, because the legal fees had risen well above the expected R4.5 million initially budgeted for them.
“We are giving the PP seven days to get legal representation. We are resuming next week Monday … with the new or old legal representative,” Dyantyi said.
Mkhwebane has also applied to the constitutional court to declare that the state, including President Cyril Ramaphosa, should fund her inquiry without a capped amount. The court previously ruled that Mkhwebane was entitled to legal representation at her inquiry, but did not specify who should pay the costs.
The inquiry is hearing two charges against Mkhwebane — alleged gross misconduct and incompetence during her more than six-year tenure, which began in October 2016 after her appointment by former president Jacob Zuma.
Vuyo Zungula, the leader of the African Transformation Movement, called it a “travesty of justice” on Monday that the courts have still not clarified who should foot Mkhwebane’s legal bills
“The issue of the legal representative of the PP has not been concluded, hence the PP is there alone without legal representation,” Zungula said. “I still maintain that without the legal representation of the PP, we cannot proceed with the hearing because the constitutional court was very clear with regards to the processes that need to be followed.”
He said it was not the committee’s problem that Mkhwebane could not pay her legal fees, but added that Mkhwebane was also not to blame for the office of the public protector stopping it. Zungula said the current constitutional court application would bring “finality” as to who should pay the legal fees.
The ANC’s Doris Dlakude said Gcaleka’s letter to Mkhwebane could not be ignored, saying R4.5 million had been set aside, but this escalated to more than R30 million.
“My agreeing to pause today until next week Monday is to allow [Mkhwebane] and the [office of the public protector] to resolve the issue of the legal team,” Dlakude said, adding that the committee would take Mkhwebane’s word that her lawyers had discontinued their services because the suspended public protector had not given the inquiry documentary proof of this.
“So, I would suggest that we pause here, this week, and we resume next week. I don’t think that will be a difficult thing for [Mkhwebane and the public protector office] to resolve that issue of the legal team because we need them to lead her evidence that we already have [from her affidavits]. It’s not like they’re going to start afresh.”
Mkhwebane defended the cost escalations, saying the legal rates of her representative, Dali Mpofu, were “negotiated” and were “below the normal rates that they were charging”. She also hit out at the committee, saying it had expanded the scope of the inquiry, leading to her requiring greater legal representation at additional costs.
“When we agreed on the R4.5 million originally, honourable Dlakude, with the legal team — and the very same agreement [public protector chief executive Thandi Sibanyoni] signed with [attorney Theo] Seanego — the R4.5 million was based on the fact that it will deal with only the panel recommendations, the prima facie issues.
“I’m also concerned about the monies which were spent, and I think it should be fair to the public, as well, to be transparent — how much was spent for the evidence leaders because we cannot only be speaking about this R26 million; we should be speaking about everything,” Mkhwebane charged.
Dyantyi agreed with what the majority of committee members had said, that the inquiry had to be postponed until Mkhwebane secured legal representation, or funding for it.
“I have always emphasised this point that the public protector and anybody in this room; they are within their rights when they are not happy with a particular decision or process to take that matter to a correct address and the correct platform that they deem fit for that purpose,” he said.
“We have always indicated that, if the court is the correct address for someone, including the PP, no one should try and ever stop that, or try and want to say it cannot be done.”