/ 4 April 2023

Mkhwebane threatens impeachment inquiry

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

Suspended public protector Busisiwe Mkhwebane has sent a letter of demand to the committee conducting her impeachment inquiry, which met for a second day without her lawyers present, for lack of further state funding.

In the letter, Mkhwebane threatened to take legal action against the section 194 inquiry if it were to continue with its work while she has no legal representation.

She began her letter by referring to the decision by acting public protector Kholeka Gcaleka not to authorise funding for her defence beyond the end of March, after total legal support for the past financial year exceeded R26 million.

That decision, she said, had caused a crisis that was threatening to derail the inquiry in which she risks impeachment for misconduct and incompetence. 

It was correct to postpone her testimony, which got underway in mid-March and then resumed last week for four days, pending resolution of the funding woes, she submitted in the letter to Richard Dyantyi, the chairman of the committee.

“I support the said postponement as a sensible step given the failure to resolve the current crisis directly and solely caused by the letter from advocate Gcaleka and which threatens to collapse the inquiry at a crucial stage when I am in the process of stating my side of the story.”

But, Mkhwebane continued, she was dismayed to discover on Monday that while her testimony had been placed on hold, the committee would continue meeting, with the evidence leaders briefing members on court records and rulings that formed part of the reason for the impeachment inquiry.

“This is obviously grossly prejudicial, unfair and unheard of in such punitive proceedings,” she said.

It was not correct to call the past two days’ proceedings meetings, as these were rather a continuation of the inquiry via “a backdoor” while she was without legal presentation, having terminated the brief of her representative, advocate Dali Mpofu, at month’s end in response to Gcaleka’s decision.

She said the evidence leaders, advocates Nazreen Bawa and Ncumisa Mayosi, were not simply briefing members on salient points in past litigation surrounding her reports but were presenting their closing arguments in the inquiry.

“To do so when the evidence is still being led, right in the middle of the testimony of a key witness, who is still on the stand in the physical absence of me and/or my legal team is a travesty of justice. I am accordingly most perturbed by what is clearly a flagrant violation.”

The aim was clearly to “poison the minds of the members of the committee and unsuspecting members of the public against [her]”, and an attempt to counter her testimony last week on her report on the so-called CR17 campaign.

Mkhwebane found that President Cyril Ramaphosa had misled parliament on funding given to his campaign to become the leader of the ANC and recommended he be investigated for money laundering. The report was overturned by the high court. When she took the ruling on appeal, the constitutional court handed down one even more scathing.

In the majority judgment, now retired justice Chris Jafta said some of her errors in law defied characterisation as innocent, notably her finding that the president flouted the code by wilfully misleading parliament on a donation by African Global Operations, formerly Bosasa.

Ramaphosa, when asked about it in the National Assembly, initially replied that it was a payment to his son, then later sent a correction to the legislature to say it was a campaign donation, but that he had deliberately been kept in the dark as to the identity of donors.

Jafta wrote that Mkhwebane sought to alter the wording of the code so as to place the president in the wrong, even if he did not know about the payment and did not intentionally give an incorrect answer. 

The court found that she had exceeded her mandate by investigating the matter because internal party campaigns were not an exercise in public power. It further found that the president had not flouted the executive code of ethics because he derived no personal benefit from the money, and that Mkhwebane had no authority to investigate this angle because she never received a complaint claiming that he did.

In her testimony last week, Mkhwebane insisted that she had been correct as the payment carried a whiff of “state capture”.

On Tuesday, Bawa and Mayosi walked committee members through the constitutional court ruling, as well as affidavits the president filed to the court, denying that he or his family benefited from donations to the campaign.

In her letter, Mkhwebane said Dyantyi was allowing the evidence leaders to “contradict and second guess the testimony given by me in my written statements and on the stand” before she had a chance to conclude her testimony.

She gave the committee until lunchtime on Tuesday to respond to her and to halt its proceedings.

“Failure to do so will result in the taking of whatever necessary steps are available to me without any further notice to you.”

It is not clear how she intends funding legal action against parliament. The sum disbursed by the public protector’s office in the past year, has included paying her lawyers when she sought to interdict the committee from commencing its work.

On Monday, she told the committee that it would be well-advised to direct its efforts instead towards ensuring that she was availed of state support to cover her legal fees.

She won the right to legal representation in the inquiry when she challenged the rules of the committee in court. However, the constitutional court held that she was allowed representation, not that she be guaranteed state funding.

The justice ministry is reliably understood to be in talks with the national treasury, which has, as per Gcaleka’s letter, made available an additional R20 million to cover her fees. 

However, it does not deem itself to be under any obligation to reprioritise money within its own budget to assist her.

The committee is aiming to conclude the inquiry in May. Mkhwebane’s seven-year term expires in October.