Former public protector Busisiwe Mkhwebane. (Leila Dougan/Daily Maverick/Gallo Images)
Suspended public protector Busisiwe Mkhwebane said on Friday she was not prepared to be represented by the state attorney in her impeachment inquiry in parliament because it would create a conflict of interest in the current and potentially fresh, further litigation surrounding the matter.
In a submission to the section 194 committee conducting the inquiry by video link, Mkhwebane insisted that the process be halted until the wrangle around her legal representation had been resolved.
She said the situation was a “mess” and the blame was squarely on the office of the public protector, both for terminating the services of her most recent attorney and for setting an upper limit of R4 million on the money it was prepared to allocate for her legal representation for the remainder of the inquiry.
Hope Chaane’s brief was terminated by the office this week after he fell seriously ill and Mkhwebane has said that she was shocked that she was not consulted before this decision was taken.
“Unfortunately, they are the cause of this mess.”
At present, she stressed, she found herself without an attorney of record to brief her senior counsel, advocate Dali Mpofu, who is representing her in the impeachment inquiry.
Isaac Chowe from the office of the state attorney confirmed in a presentation to the committee on Friday morning that Mkhwebane had refused to have an attorney appointed from that office.
“It is indeed so that the public protector is declining to be represented by the state attorney in Pretoria or any other state attorneys,” Chowe said.
He said Mkhwebane had said this would pose a clear conflict of interest but felt that it would be better if he left it to her to elaborate on the nature of the conflict she foresaw.
Mkhwebane said it would arise from, inter alia, the application she intended to bring for the recusal of the chairman of the committee, Richard Dyantyi.
“The issue now is, let’s say Chowe proceeds, can Chowe continue to dispute and apply in court for the recusal of the chairperson? Can Chowe go and litigate against the state attorney because you chairperson and others are represented by the state attorney, so I was trying to do things properly and, if I was listened to and not being taken as if, or accused of, delaying this issue would not have arisen,” she said.
Mkhwebane went on to accuse the office of the public protector of deviating from an agreement that she would be represented by any attorney on its list of legal service providers.
She said Chaane was selected from this list by the office of the state attorney which the office of the public protector had mandated to manage that process.
“I never had a problem [with that] because the monies come from PPSA (Public Protector South Africa). Now the PPSA decides to terminate Chaane and the state attorney then also writes to Chaane and terminates Chaane and now I don’t have an attorney.”
She said she wrote to Chowe to inform him that she was prepared to be represented by Chaane or anyone on this list.
“Now they’ve deviated, the public protector, by even approaching the state attorney.”
Mkhwebane said she was expecting the office of the public protector “to have the decency of contacting me” instead of simply informing her that they had asked the office of the state attorney to proceed to handle her representation.
She then accused Fatima Abrahams, the legal advisor to the committee, of attempting to distort an earlier exchange, when it had appeared that Mkhwebane was not averse to the involvement of the state attorney, and of confusing committee members.
Abrahams told the committee that it was not quite clear to her how this would create a conflict of interest, for which the test was one of reasonableness, and said she saw no obstacle to appointing a new attorney from that office, so that the inquiry could proceed.
“I personally cannot see what the impediment is, so that we can now move forward,” she said.
“My understanding is that they play a very limited role,” she added of the briefing attorney. “It is counsel that do the heavy lifting.”
But Mkhwebane said she was being persecuted by the state on several fronts and it was, at every turn, legally represented by the state attorney, hence the conflict was patent. She said this included the ongoing litigation around the legitimacy of her suspension a year ago by President Cyril Ramaphosa, pending the outcome of the impeachment inquiry.
She stressed that the Western Cape high court found that the suspension was tainted by “bias of a disqualifying kind”, and seemed hurried, given that it followed days after Mkhwebane decided to investigate the Phala Phala controversy around a robbery at the president’s game farm. The constitutional court has heard consolidated appeals and applications in the matter but has yet to make a ruling.
Mkhwebane also stressed that she had the right to legal representation of her choice, as per an earlier constitutional court ruling, where she challenged the rules of the impeachment process.
If the committee were to proceed without her having legal representation it would therefore “be in direct contempt of court”.
Since she was without a state-funded attorney, she added, she had privately engaged one — “out of my own pocket” — to correspond with Dyantyi regarding her demand that he recuse himself from chairing the inquiry.
Furthermore, she said the R4 million left for her legal defence, in terms of a decision taken by acting public protector Kholeka Gcaleka, was not sufficient.
Earlier this year, Gcaleka said her office, by the end of March, had spent R26.2 million on Mkhwebane’s legal challenges to the impeachment process and her representation before the inquiry and this was impacting on its ability to do its work.
“I was told the R4 million is for my travelling, for my accommodation, for everything. I went there three times in Cape Town, hence now I am appearing virtually, and R4 million is no longer R4 million, if we are using that money to exercise or to do anything which one is supposed to be doing.”
The recent demand for Dyantyi’s recusal has brought a fresh twist to a process he described on Friday as seeming to have a “DNA of delays”.
Mkhwebane wants him to recuse himself on the basis of allegations her husband made that he, ANC chief whip Pemmy Majodina and the late chairperson of parliament’s portfolio committee on police, former energy minister Tina Joemat-Pettersson, solicited a bribe in order to halt the inquiry.
Joemat-Pettersson died on Monday.
Dyantyi asked Mkhwebane to submit a letter with her recusal demand on Friday and said he would respond to it formally by lunchtime on Monday.
She has threatened that, should he fail to agree to step aside, she would proceed to court to force his recusal.
The committee has drawn up a timeframe for its work to be completed by the end of June. Mkhwebane’s seven-year term of office expires in October and parliament has begun the process of finding a successor.