/ 9 September 2022

Mkhwebane’s legal spending spree

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Former public protector Busisiwe Mkhwebane. (Leila Dougan/Daily Maverick/Gallo Images)

Little-known law firm Seanego Attorneys received work worth R49-million from the public protector’s office, out of R146.9-million spent on legal fees by Busisiwe Mkhwebane in five years, the parliamentary inquiry pursuing misconduct charges against her heard on Friday.

The amounts have emerged as Nazreen Bawa, the evidence leader in the section 194 inquiry, questioned witnesses in relation to a charge that Mkhwebane had failed to contain unauthorised or wasteful legal expenditure.

The sum, which is several times more than what was spent on legal fees under her predecessor Thuli Madonsela, includes R14.6-million Mkhwebane spent on litigation to oppose the initiation of the impeachment process and to interdict the president from suspending her post.

The legal wrangling, which spans about two and half years, included the foolhardy pursuit of two rescission applications to the constitutional court after it upheld a high court ruling striking down her challenge to the rules of the section 194 committee, except on one count. 

However, acting public protector Kholeka Gcaleka closed the tap after Mkhwebane was suspended in June, and before the apex court dealt with the second rescission bid. The court dismissed it as an abuse of process and ordered that Mkhwebane be held personally responsible for costs.

It was not the first time the courts have punished Mkhwebane with a personal cost order, but the sums awarded are a fraction of the cost her office has incurred in her failed attempts to defend 37 reports that were overturned on review.

The legal battle around her Bankorp-CIEX report, which included the extraordinary directive that the mandate of the South African Reserve Bank be amended, saw costs of R1.5-million awarded against the institution. 

Its total litigation fees in the matter amounted to about R14-million. 

The cost of defending Mkwhebane’s report on the Vrede dairy farm scandal came to around R5-million. In her ruling striking down the report, high court judge Ronel Tolmay berated Mkhwebane for the number of counsel engaged, with no regard for the public purse.

However, in several instances, the record obtained by the section 194 committee was incomplete and this raised the possibility that the total spent on Mkhwebane’s watch might be higher, the evidence leaders said.

On Friday, Bawa questioned Muntu Sithole, from legal services in the office of the public protector, as to how legal work was allocated and why Seanego was briefed to the extent that it was. Since her suspension, Mkhwebane has continued to brief the firm in her personal capacity. 

Sithole submitted that cases were equitably distributed between a panel of pre-selected law firms but later qualified this to admit that it was so until the start of 2021. From then on, he said, there was not enough work for external law firms to attempt equitable distribution.

Bawa then questioned him on the engagement of attorney Paul Ngobeni – a staunch supporter of former president Jacob Zuma and advisor to Lindiwe Sisulu when she served as defence minister – to provide legal opinion for the public protector.

Ngobeni’s legal qualifications have been questioned and the committee heard on Thursday that he was paid more than R30 000 to write articles in defence of Mkhwebane. Bawa sought confirmation from Sithole that he was also briefed to do legal work around the Vrede report. 

The committee heard earlier that he was paid for a legal opinion on Mkhwebane’s report – also set aside on review – on funding to President Cyril Ramaphosa’s CR17 campaign for the presidency of the ANC. 

“Through Seanego, did Mr Ngobeni get any instruction to have any involvement in the Vrede matter, after the Tolmay judgment was handed down?” she asked.

Sithole said he could not remember, prompting Bawa to point out that this was implausible because, on his own evidence, he was closely involved in the litigation process.

“When leave was refused, when we filed for direct access to the SCA, I think those papers were filed by Advocate [Muzi] Sikhakhane,” the witness said.

Bawa repeated the question, saying she had not asked about other lawyers briefed in the matter but about Ngobeni.

“My response is that I can’t recall,” Sithole insisted. 

She then put it to Sithole that he was well aware that Ngobeni was in fact engaged to provide legal services in relation to the invalidated Vrede report, but was failing to make a full disclosure to the committee.

He denied this, but later conceded that there may have been instances where he authorised payment of legal fees that exceeded approved tariffs.

Sithole confirmed that Mkhwebane held a meeting with media consultant Kim Heller and academic Sipho Seepe, both of whom have expressed support for Zuma, with a view to them doing work for her office but said in the end they were not engaged.

There are still 47 legal challenges to reports penned on Mkhwebane’s watch pending before the courts. Gcaleka has indicated that of those, she will not oppose 24.