/ 2 November 2022

Public protector office asked to pay for Mkhwebane’s ‘spiritual war’

In yet another court case against Busisiwe Mkhwebane
Busisiwe Mkhwebane. (Oupa Nkosi)

Private consultants billed the legal services department of the office of the public protector (PP) for their efforts to counter the criticism of Busisiwe Mkhwebane expressed by judges they termed politically beholden, the inquiry mulling her impeachment heard on Tuesday.

The proposals and invoices for this work were sent to Seanego Attorneys, Mkhwebane’s law firm of choice, despite none of the three people involved having legal qualifications, a senior manager in the legal services office said.

Neels van der Merwe also confirmed that Paul Ngobeni, Kim Heller and Sipho Seepe were not among the recognised consultants listed in the public protector’s database. 

Heller took aim at the media and the judiciary and said their efforts to tarnish Mkhwebane would take extraordinary effort to undo, according to a proposal quoted by the evidence leader in the impeachment inquiry, advocate Nazreen Bawa.

“Opposition to the PP is akin to a spiritual war. She can do nothing that can be considered right. This will require a very sophisticated reincarnation positioning exercise. The echo chamber that has been unleashed on the office and her person is heavily resourced,” Heller wrote.

“To wear her down, detractors have used the strategy of mounting a series of complaints on the same issue. This allows them to accuse any of her reports as incomplete and therefore branded unconstitutional. The Vrede matter is a case in point.

“She is also faced with the challenge of having to contend with judges that seem beholden to a political party and elite interests.”

Bawa cited an email from Mkhwebane in which she impressed upon her then chief of staff, Sibusiso Nyembe, that Ngobeni should be enlisted to work with Heller and Seepe. 

Nyembe was only engaged from early 2019, yet he received an invoice from Ngobeni on an official public protector email address some six months before. It was also sent to Seanego Attorneys.

The criticism levelled at Mkhwebane’s work by the courts in rulings setting aside her reports form part of the basis for the parliamentary inquiry. 

An independent panel found prima facie evidence of misconduct in her handling of the investigation into donations to Cyril Ramaphosa’s election campaign for ANC president, the Bankorp-CIEX lifeline — which saw her recommend the amendment of the mandate of South African Reserve Bank — and the now discredited narrative of a “rogue” intelligence unit in the South African Revenue Service (Sars).

In the course of the Sars matter, she failed to reveal that she held meetings with the State Security Agency and then president Jacob Zuma.

Bawa questioned Van der Merwe about Mkhwebane’s bizarre move of issuing a section 7.9 notice against former finance minister and Sars commissioner Pravin Gordhan publicly. He confirmed that this should have been done confidentially, as is the norm when the public protector cautions someone of adverse findings in a preliminary report. In the end, none of her findings against Gordhan withstood legal challenges.

Van der Merwe is to continue his testimony on Wednesday. It is seen as crucial in the committee’s bid to understand how, on Mkhwebane’s watch, the public protector’s office spent R147-million on legal services, of which R49-million went to Seanego Attorneys.

His testimony began under objection from Mkhwebane, who had argued for a postponement until 7 November because her legal team was not available this week. This was denied, because the team was present when demanding the same last week. 

She clarified, somewhat predictably, that the legal team had not withdrawn as was speculated after her senior counsel, Dali Mpofu left a sitting last week Thursday in theatrical and ambiguous fashion.

Mkhwebane said it was mischievous to suggest that he had signalled his withdrawal, when he told the committee “So, that’s it.”

Mpofu alleged that if the committee was to proceed with further hearings, this would be “illegal”, hence he could not be party to it, adding: “Good luck, we’ll see you again, maybe. Or maybe not.”

On Tuesday, Mkhwebane said Mpofu and Theo Seanego would not be available to represent her for the rest of the week because they had to prepare heads of argument for the constitutional court by Friday, ahead of a confirmation hearing on 24 November necessitated by the Western Cape high court ruling that held that her suspension by President Cyril Ramaphosa was biased.

After hearing her explanation, GOOD party MP Brett Herron said he was still in the dark as to what Mpofu meant when he walked out of the committee meeting. The chairperson of the inquiry, Qubudile Dyantyi, said he shared his dilemma and several questions about Mpofu’s exit remained unanswered.

After Dyantyi decided that the committee would proceed to hear Van der Merwe’s testimony, the Economic Freedom Fighters submitted that the commission was acting in contempt of court, a reference to the constitutional court ruling that held that Mkhwebane was entitled to full legal representation during the inquiry.