By Lehlohonolo Lehana.
The inquiry into suspended Public Protector Busisiwe Mkhwebane’s fitness to hold office has been postponed indefinitely so that she can find legal representation.
The current impasse started on 1 March, when the Office of the Public Protector informed Mkhwebane that it would not be able to continue to foot her mounting legal bill in the coming financial year, starting on 1 April.
She didn’t brief advocate Dali Mpofu, SC, and his team, consisting of two junior advocates and two representatives from Seanego Attorneys, beyond 31 March.
Her testimony screeched to a halt when she insisted that the state should pay for her legal defence against impeachment.
Meanwhile, with Parliament and Treasury’s involvement, the Office of the Public Protector found a further R4 million from its retained surplus from the 2021-22 financial year, and availed this for the costs until the end of the process.
Although she couldn’t find lawyers to represent her at the inquiry, she managed to brief lawyers to lodge another court challenge against the process.
She described the R4 million as “unrealistic and absurd” in her founding affidavit.
With the funding resolved, the issue now is finding legal representation, which she is entitled to in terms of a Constitutional Court ruling.
Mkhwebane insists it is up to the Office of the Public Protector to appoint her legal representation.
She told the committee: So, I was waiting for them to approach Seanego.
The attorneys who previously represented Mkhwebane in the proceedings, Seanego Attorneys, indicated that they were no longer available.
Parliament’s senior legal advisor Fatima Ebrahim then briefed the committee on the issue of Mkhwebane’s legal team.
Ebrahim told MPs that Seanego Attorneys has indicated that the firm will no longer act on behalf of Mkhwebane due to “professional reasons”.
She said the office of the State Attorney was then approached to find whether legal services can be provided to Mkhwebane, but the Solicitor-General, Fhedzisani Pandelani, informed the committee that this was not possible because of a conflict of interest.
“They have, however, indicated that they can assist the Public Protector’s office with outsourcing of private attorneys.”
Despite a slew of letters between the committee, Mkhwebane, the Office of the Public Protector and the solicitor-general, the issue couldn’t be resolved by Wednesday.
DA MP Kevin Mileham said the committee had bent over backwards to assist Mkhwebane in finding legal representation. The fact that Mkhwebane didn’t continue with Seanego had nothing to do with the committee, and the Constitutional Court ruling said that she should be assisted, not represented, he added.
He was concerned about delaying tactics and that the same thing could happen in three weeks.
IFP MP Zandile Majozi concurred with Mileham, “I think the committee has been supporting the Public Protector. We have given her enough support.”
“Honestly, I think sometimes we are just playing tactical games here,” Majozi said, adding that there appeared to be an attempt to push the proceedings until October.
Committee chairperson Qubudile Dyantyi said he “appreciates” their impatience. However, he had to postpone the hearing until Mkhwebane could find legal assistance. He said members must be on “standby” and they will be told when they could proceed.
Parliament’s schedule is currently jampacked, with all departments and entities’ budgets being debated in the National Assembly, along with other committee work.
Furthermore, the National Assembly will take a longer than usual constituency period in the winter, with the House rising on 18 June and returning on 31 August. It would be possible for the committee to continue with its work during the constituency break.
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