Parliament, Thursday, 10 November 2022 – The Committee for Section 194 Enquiry into Public Protector (PP) Adv Busisiwe Mkhwebane’s fitness to hold office today heard from Evidence Leader Adv Nazreen Bawa, SC, about certain errors in the spreadsheet of legal fees incurred by the Office of the PP which formed part of the testimony of Mr Neels Van der Merwe, Senior Manager- Legal Services in the Office of the PP.

Adv Bawa yesterday requested an opportunity to address the committee on the matter of legal costs. Her presentation was deferred to this morning. Addressing the committee, Adv Bawa sought to clarify matters regarding the spreadsheet which contained a break-down of legal fees of over R2 million or more paid to lawyers by the Public Protector South Africa during Adv Mkwhebane’s term of office. Adv Bawa explained that the exercise was done on the request of the committee which sought further information on the payment of legal fees.

Adv Bawa noted that one of the issues the Enquiry was tasked to investigate was whether Adv Mkhwebane had misconducted herself or demonstrated incompetence by failing intentionally or in a grossly negligent manner to prevent fruitless and wasteful or unauthorized expenditure in legal costs. According to her when the figures were flighted last week, some were regrettably incorrect.

She said that despite changes being made to the figures, the changes had not been saved on the main document and some were not visible when projected on the screen in the committee room. Adv Bawa indicated that evidence leaders take responsibility for the errors made. She highlighted that these errors included information related to the fees of Adv Muzi Sikhakhane, SC and Adv Vuyani Ngalwana, SC. By way of example a fee that was paid to Adv Dali Mpofu, SC was mistakenly attributed to Adv Ngalwana.

Adv Bawa denied that evidence leaders deliberately excluded the names of white advocates from the spreadsheet and pointed out that, of the eight advocates, initially not included on the list in respect of 2017 litigation, seven were black. She said there was no suggestion by the evidence leaders that there was looting by the legal practitioners. According to her there was nothing contrived about releasing the figures and the purpose was not to embarrass the counsel. She apologised to all those affected by the error.

Both Adv Sikhakhane and Adv Ngalwana were present at the start of the meeting, and although they did not make a prior request to address the committee on their concerns, committee Chairperson Mr Qubudile Dyantyi granted them an opportunity to address the committee. Adv Sikhakhane who said he was speaking on behalf of some of the affected legal counsels read out a statement in which he stated that although they supported accountability they were of the view that Adv Bawa perpetuated a racist stereotype that black advocates were corrupt. He claimed that junior advocates now feared for their lives as a result.

Mr Dyantyi indicated that Members of the committee will not engage on the concerns raised by Adv Sikhakhane at this stage and will await formal communication on this matter. He said it was important for him to note that evidence leaders do work on behalf of the committee and he must therefore defend Adv Bawa who was tasked with gathering evidence and presenting it to the committee.

The committee then heard the cross-examination of Adv van der Merwe by Adv Mpofu. Adv van der Merwe revealed that 37 of Adv Mkhwebane's reports have so far been reviewed and set aside with a further 24 reviews still pending and of the pending reviews he told the committee that only one of the was being opposed.

Adv van der Merwe was asked questions in relation to the cost of litigation pursuant to the National Assembly’s (NA’s) section 194 process on the matters relating to the review of reports by Minister Pravin Gordhan and on the matter of the South African Reserve Bank (SARB). Adv Dali Mpofu said he would not be surprised if the total legal spend on section 194 related litigation paid by taxpayers, was between R60 million to R100 million. Adv van der Merwe said the cost of the Gordhan-litigation was probably between R80 million to R100 million.

On the matter of the PP’s remedial action ordering Parliament to amend the Constitution in relation to the mandate of the SARB, Adv van der Merwe denied that this was informed by his research paper on the matter . He said his submissions about the SARB were intended to be sent to Parliament’s Joint Constitutional Review Committee and in no way amounted to an order that the bank's mandate should be changed.

The hearings will continue tomorrow with the conclusion of Adv van der Merwe’s cross examination. The committee was established by the NA 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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