By Lehlohonolo Lehana.
Suspended Public Protector Busisiwe Mkhwebane has been hit with her 38th legal loss, after the Constitutional Court dismissed her bid to defend her second invalidated report on Minister Pravin Gordhan, in failed litigation that has cost the public R15 million.
The Pretoria High Court declared her final report into allegations of maladministration related to an information technology (IT) contract at the South African Revenue Service (Sars) invalid and unlawful. The report was set aside.
Sars said in a statement, it is delighted the court upheld its contention that the findings and remedial action in the report were “irrational, unlawful, unreasonable and unfair”.
The report, published earlier this year, stems from a complaint her office received in 2016 about the appointment in 2006 of Barone, Budge & Dominick to provide strategic projects and related services within the Sars modernisation programme.
Mkhwebane found the conduct of then Sars commissioner Gordhan in the appointment “improper” and that it amounted to maladministration.
Gordhan, now Minister of Public Enterprises, argued that her investigation related to events that took place 15 years ago and that she had to advance substantial “special” reasons to justify the investigation of an “uncontroversial event” that took place so long ago.
The Public Protector was ordered to pay Gordhan’s legal costs, including the cost of two counsel.
Sars Commissioner Edward Kieswetter said in the statement following Friday’s ruling that Barone, Budge & Dominick played a pivotal role in Sars’s modernisation programme.
He said the Nugent Commission of Inquiry, set up to investigate administration and governance at the tax authority, found that in 2014 Sars had an effective and world-class IT division with well-documented successes.
Mkhwebane is currently facing the Section 194 Enquiry Committee in Parliament, which is looking at her fitness to hold office. Her term officially ends in October 2023
The Inquiry was scheduled to start at 09:30 on Friday, so that advocate Dali Mpofu SC could continue his cross-examination of PPSA legal services manager Neels van der Merwe.
Evidence leader Nazreen Bawa took Van der Merwe through the corrections.
It emerged that the PPSA actually spent R5.9 million on the CR17 litigation – which is more than previously reflected.
Bawa SC corrected amounts paid by PPSA to several advocates. She reveals that Adv Sikhakane received R3,9mill (not R4,7mill) and Adv Ngalwana received R3,4mill (not R4,7mill). Adv Mpofu received R13,1million (not R12,2mill).
Evidence before the inquiry calls into question the R147 million spent on legal fees in relation to the quality of services provided given Mkhwebane’s dismal litigation track record. It also appeared from email evidence that counsels’ political affiliation played a role in their appointment.
Since 2018, Seanego Attorneys received the most briefs, and evidence shows the firm has to date been paid more than R55 million in legal fees and, out of this amount, advocate Dali Mpofu SC, was the highest-paid counsel, having received about R12 million.
Furthermore, evidence before the inquiry also shows Paul Ngobeni, a fugitive from US justice who is not allowed to practice law in South Africa, was paid thousands of rand for “legal opinions” and communications services, including attack articles against judges who ruled against Mkhwebane, from the legal services budget through Seanego Attorneys.
Ngobeni subcontracted RET commentators Kim Heller and Professor Sipho Seepe for “communication services” – for which he invoiced Seanego Attorneys.
This while PP had a department for communication services. After this evidence was revealed, the DA said it would write to Acting Public Protector Kholeka Gcaleka to “request that a full audit is conducted on all funds spent by the Public Protector to defend Mkhwebane both in court and in the media space”.
Meanwhile, the PP says it is reviewing its systems, including those relating to procurement of legal services.
“This is to identify gaps and put in place appropriate corrective measures, which will include reporting to the relevant authorities where necessary, in order to ensure that its message of promoting good governance in state affairs is lived up to from within.
“We wish to assure the people of South Africa that we are acting within the parameters of the law in every action being taken. As an institution that is entrusted with ensuring accountability in state affairs, we too remain accountable. The institution will not be making any further comment on this matter.”
Livestream Video Below:
Video Courtesy of Parliament.