Parliament, Wednesday, 17 May 2023 – The Committee for Section 194 Enquiry into Public Protector (PP) Adv Busisiwe Mkhwebane’s fitness to hold office once again today today had to postpone it hearings due to Adv Mkhwebane still not securing legal representation.

Adv Mkhwebane has appeared before the committee without legal representation several times since the beginning of April, after the office of the Public Protector South Africa (PPSA) made it clear at the beginning of March that they can only afford to foot the ever-increasing bill for her legal team until the end of March 2023. Notwithstanding that, a further R4 million has been made available.

The PPSA and the PP disagreed as to the approach to follow in ensuring the legal team returns to the hearings. However, prior to this being resolved, the committee received correspondence from the PP’s attorneys on record in the enquiry, Seanego Attorneys, indicating that, for professional reasons, they no longer act on Adv Mkhwebane’s behalf. Furthermore, due to the absence of a waiver from her, Seanego could not say what these reasons are.

Committee Chairperson Mr Qubudile Dyantyi, said the committee noted Adv Mkhwebane’s clarity and confirmation in the meeting that she has terminated Seanego’s mandate. Adv Mkhwebane also said that she did not know what the professional reasons were, but she was not prepared to provide a waiver that would allow Seanego to share those reasons. Adv Mkhwebane also said that Seanego was appointed to represent her in the proceedings by the previous PPSA Chief Executive Officer.

Committee legal advisor Ms Fatima Ebrahim informed the committee that the PPSA was also requested to investigate obtaining assistance from the office of the State Attorney, as correspondence received from RMT Attorneys, who act on behalf of Adv Mkhwebane in related litigation, had indicated that she had no objection to being represented by the State Attorney.

Addressing the committee. Adv Mkhwebane said that in fact this was not the case and she had not agreed to use the State Attorney. Ms Ebrahim alerted the committee to a letter from RMT Attorneys that clearly states that the PP had no objection to such representation. Adv Mkhwebane said she has her own firm of attorneys that she would prefer. She also indicated that Adv Dali Mpofu, SC, is still willing to continue with the hearings and remains her counsel of choice.

The committee heard further that the Solicitor-General had informed the PPSA this morning that they cannot act on Adv Mkhwebane’s behalf because of a conflict of interest. The Solicitor-General raised important considerations in respect of cost containment, noting that legal representation is not an open-chequebook exercise. The Solicitor-General said consideration should be given as to how to reduce the PP’s legal team and negotiating fees.

During discussions among committee Members, it was clear that there are mixed views on the matter. Some members said that Adv Mkhwebane should be given an opportunity to find the legal assistance she wants and, when that team is ready, then the committee should meet again to continue with the process. The other views were that the committee has “bent over backward” to accommodate Adv Mkhwebane and that this is another delaying tactic on her part.

In summarising today’s proceeding, Mr Dyantyi reiterated that the committee is not dealing with legal funding challenges, as the PPSA has made another R4 million available for this. He said the only issue the committee must attend to now, with the assistance of the Solicitor-General, is Adv Mkhwebane’s legal support. This will happen in “back room” discussions. The committee will resume once that is in place.

The committee was established on 16 March 2021 to conduct a constitutional inquiry into the PP’s fitness to hold office. Committee documents can be found at Committee for Section 194 Enquiry - Parliament of South Africa


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