/ 20 October 2022

Evidence leader in Mkhwebane inquiry refuses recusal

Busisiwe Mkhwebane Public Protector Suspension Scaled
Former public protector Busisiwe Mkhwebane.

Advocate Nazreen Bawa, the evidence leader in the parliamentary inquiry considering the impeachment of the public protector, on Thursday said she would not heed calls for her recusal founded on spurious allegations by an attorney who has acted for Western Cape Judge President John Hlophe.

The committee accepted Bawa’s stance, but it was rejected by the Economic Freedom Fighters (EFF) who said they would not accept a decision imposed by a majority (12 out of 14) of the members of the section 194 committee investigating Busisiwe Mkhwebane for misconduct and incompetence. 

Members of the ANC and Democratic Alliance countered that the EFF’s bid to force Bawa to stand down was an attempt to stall the inquiry while Mkhwebane pursued her court bid to be reinstated.

There were two letters before the committee demanding Bawa’s recusal, filed one day apart earlier this month. The first is from Godrich Gardee Attorneys, a fledgling law firm headed by the former EFF MP of the same name, on behalf of Chumani Maxwele and the second is from the United Democratic Movement (UDM). 

Bawa responded by reading out a 27-page affidavit answering in detail their allegations in their applications, which she said were markedly similar and seemingly founded on an affidavit filed to court by Barnabas Xulu, the director of BXI Attorneys.

Bawa has been on brief as the senior counsel for the department of forestry, fisheries and the environment (DFFE) in a case where Xulu and his firm were ordered by the high court to repay R20.2-million received in fees from the department, after a service level agreement was set aside.

“The complainants rely on allegations made by a disgruntled litigant (Mr Xulu / BXI): who continues to engage in dilatory and unmeritorious litigation to avoid repayment to the DFFE of an amount in excess of R20-million,” she said, adding that neither the UDM nor Maxwele named the source of their claims. 

“Whilst the complainants rely on an affidavit filed in legal proceedings, neither expressly indicates that the deponent of the affidavit is Mr Barnabas Xulu, the sole director of the law firm, B Xulu & Partners Inc. (“BXI”), (“the Xulu affidavit”), who has been embroiled in repeated litigation with the department of forestry, fisheries & environment (“DFFE”).” 

She noted that Xulu had failed to return the money — resulting in contempt and attachment orders — and still faces disciplinary charges arising from a complaint of dishonesty to the Legal Practice Council relating to the fact that R1-million was paid into BXI’s trust account, and dissipated.

Instead, she said, he had “embarked on a vendetta — and indications are that he is aided by his erstwhile clients, Mr Maxwele and Mr Paul Ngobeni — against the legal team engaged by DFFE”. 

This involved making scurrilous and unsubstantiated claims and material misrepresentations to court, in “behaviour unbecoming an officer of a court”. 

Both the UDM and Maxwele suggested that Bawa step aside to give herself space to deal with allegations that she had tried to subvert court processes and interfere in criminal investigations. Bawa said none was needed and faulted the parties for confusing allegations with prima facie evidence of wrongdoing on her part.

“Both complaints appear to labour under some misconception that there exists a 407-page affidavit which, in its entirety, impugns my reputation and implicates me in some sort of criminality and to which I have some obligation to respond — whether in court or in some unspecified criminal or other process,” she said.

“I respectfully decline the invitation to recuse myself. I am also not a decision-maker, nor a member of the committee. The complainants have not pointed to anything done during this inquiry that warrants my removal.”

She added that Maxwele’s threat of bringing criminal charges against her seemed designed simply to give Xulu a pretext to launch further attacks on the department’s legal team and possibly to launch further litigation in his bid to avoid repaying the money, despite having lost or abandoned 13 cases so far.

Ngobeni’s name has come up often in the inquiry. It emerged in evidence in August that he invoiced Seanego Attorneys, who has been Mkhwebane’s law firm of choice, for hundreds of thousands of rands for legal opinion provided.

But evidence was also led that his services, for which the state was billed, included penning an article maligning Gauteng high court judge Sulet Potterill who granted an order in favour of Minister Pravin Gordhan after Mkhwebane found that a “rogue” intelligence unit operated in the South African Revenue Service under his watch.

Potterill said the following of her report, which has since been struck down: “Much of the orders are vague, contradictory and/or nonsensical.”

At the close of Thursday’s meeting, members were told that Mkhwebane’s lawyers had indicated that they would move for a postponement of the process. She has applied for leave to appeal the dismissal by the Western Cape high court of her application for the immediate execution of its earlier ruling that the decision by President Cyril Ramaphosa to suspend her pending the outcome of the inquiry was rendered unlawful by bias.

The court held that its ruling had no force until confirmed by the constitutional court, which has set down the matter for hearing on 24 November.