Parliament, Thursday, 20 October 2022 – The Committee for the Section 194 Enquiry into Public Protector (PP) Adv Busisiwe Mkhwebane’s fitness to hold office today resolved to accept the explanation provided by Evidence Leader Adv Nazreen Bawa, SC, on the allegations against her and her subsequent decision not to recuse herself.
Committee Chairperson Mr Qubudile Dyantyi noted that of the 14 members who participated in the deliberations on this matter, 12 did not support the call for Adv Bawa’s recusal. Members said that Adv Bawa’s recusal was not substantiated by any allegation of bias or conflict of interest related to the section 194 process. The Chairperson noted, however, the Economic Freedom Fighters’ (EFF’s) objection to the committee’s decision. The EFF was of the view that in order to protect the integrity of the committee, Adv Bawa should recuse herself.
Today’s meeting follows an application made by the United Democratic Movement (UDM) for Adv Bawa to recuse herself. A similar request was also received from Gardee Godrich Attorneys, acting on behalf of Mr Maxwele, the Chairperson of the Black People’s National Crisis Committee. Both requests relied on an affidavit made by Mr Barnabus Xulu in an unrelated matter concerning litigation in which Adv Bawa is acting for the Department of Forestry, Fisheries and Environment. According to the UDM, it has come to their attention that Adv Bawa is involved in legal proceedings where her alleged conduct is being questioned on an issue that could lead to her being criminally prosecuted in terms of S41(6) of the National Prosecuting Authority Act.
In response, Adv Bawa presented her written response to the allegations against her, which ran to 27 pages and included various supporting annexures. She stated that she is not a decision-maker nor a member of the committee. She also noted that the complainants have not pointed to anything done by her during this inquiry that warrants her removal from it as evidence leader. She further explained that the UDM and Mr Maxwele rely solely on Mr Xulu’s affidavit in what is an ongoing matter and that she denies the allegations made against her.
Adv Bawa said that Mr Xulu faces serious disciplinary charges (relating to dishonesty) pursuant to a complaint that was lodged in January 2020 at the Legal Practice Council (LPC) in relation to an amount of some R1 million, which was paid into Barnabas Xulu Incorporated’s (BXI’s) trust account. These funds were spent without any accounting, in contravention of sections 87 and 88 of the Legal Practice Act and with complete disregard to the fact that these funds constituted trust monies. According to Adv Bawa, Mr Xulu’s Porsche was subsequently attached, as well as his luxury holiday home in Ballito and earnings of R2.6 million. He is yet to provide his Porsche to the sheriff for attachment.
Adv Bawa went on to say that instead of paying back the more than R20 million that several courts have found BXI/Mr Xulu to have unlawfully removed from bank accounts, BXI/Mr Xulu have embarked on a vendetta against her and the legal team involved in that litigation. Indications are that he is aided by his erstwhile clients, Mr Maxwele and Mr Paul Ngobeni against the legal team engaged by the Department of Forestry, Fisheries and the Environment. Mr Xulu has lost or abandoned in no less than 13 court appearances (mostly with costs) in matters in which Adv Bawa represented the department.
Adv Bawa also stated that she has not interfered in any National Prosecuting Authority prosecution, nor any investigation into criminal conduct, nor sought to frustrate any criminal investigations, nor has she sought to shield any person from criminal investigations. Adv Bawa went on to say that she did not knowingly or even unwittingly place false evidence before the Western Cape High Court on the instructions of Mr Mlengana, the department’s former Director-General, to mislead the court. Furthermore, the allegations were rejected by the court in those proceedings.
Regarding allegations of complaints against her to professional bodies, she said that she is unaware of any criminal investigations pending against her or any reports regarding her conduct that have been resubmitted to the LPC or the Cape Bar Council.
In closing, Mr Dyantyi said the message of committee members was clear: “We must stay focused on our mandate. Keep our eyes on the ball. But as we do that, I want to urge members that we must have listening ears and seeing eyes. Ons kan nie oogklappies dra nie (We can’t be wearing blinkers). We must be seen as a listening committee, so people can’t feel doors are closed.” He further emphasised that all correspondence brought to the committee for discussion must pass the test of relevance.
The committee was established by the National Assembly on 16 March 2021 to conduct a constitutional inquiry into the Public Protector’s fitness to hold office. Committee documents can be found at Committee for Section 194 Enquiry - Parliament of South Africa
ISSUED BY THE PARLIAMENTARY COMMUNICATION SERVICES ON BEHAL F OF THE CHAIRPERSON OF THE COMMITTEE FOR SECTION 194 ENQUIRY, MR QUBUDILE DYANTYI.
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