Impeachment inquiry adjourned for a week for Mkhwebane to get lawyers

The parliamentary inquiry into suspended public protector advocate Busisiwe Mkhwebane’s fitness to hold office was postponed for seven days on Monday to allow her to find legal representation.

The inquiry, which has not sat for more than a month due to lack of legal funding for the public protector, was scheduled to resume with Mkhwebane continuing with her oral evidence. 

But when the inquiry sat on Monday, Mkhwebane requested a postponement until the public protector’s office (PPSA) has appointed new lawyers to represent her or to reappoint her previous legal representatives if they are able and willing to continue representing her.

It also emerged that Mkhwebane approached the court on an urgent basis on Friday, asking it to determine who should pay her legal fees.

She wants the court, which previously found that she was entitled to legal representation in the inquiry, to order parliament, President Cyril Ramaphosa, inquiry chairperson Richard Dyantyi and alternatively the state to provide resources for her legal representation.

She also wanted proceedings to be postponed until this determination had been made.

The public protector’s office revealed last week that it had made an additional R4m available for Mkhwebane’s legal funding in the inquiry. This is after acting public protector Kholeka Gcaleka told Mkhwebane on March 1 that the office would not be able to fund her legal fees beyond March 31, which was the end of the 2022/2023 financial year, a development that saw the inquiry screech to a halt at the end of March.

In a letter dated May 4 to Dyantyi, Mkhwebane said since the end of March she has had no legal representation and the public protector’s office would need to properly appoint attorneys to represent her.

She said she could not engage lawyers directly, neither would it be proper for her to handle the money availed for her representation.

Mkhwebane said both Dyantyi and Gcaleka had during media interviews last month made it “loud and clear” that no money would be made available for her legal representation.

“Out of the blue and on three days’ notice, you now inform me, without any prior engagement or sufficient details, that ‘the funding issue has been resolved’ and demand my response within 24 hours.

“Needless to say, the letter from the deputy public protector terminating my attorneys’ mandate as well as hers and your public utterances, completely stripped me of my right to legal representation, were in contempt of the order of the Constitutional Court and constituted a clear indication to my previous legal team that their services would no longer be catered for,” she said.

Mkhwebane said she has always expressed her intention to be legally represented at the inquiry.

“As things stand, I am informing you that I have no legal team to represent me. I need time to secure legal representation.”

She also took issue with the R4m limit, indicating that it would be difficult to find a legal team that would agree to represent her with that amount or to complete the work within a month.

Mkhwebane also protested against the time limit attached to the resumption of the inquiry and described it as “unrealistic and absurd”. Dyantyi estimated that there were 22 days of work left by the committee.

“It ought to be obvious that these are absurd and impossible conditions to impose, given the nature and scope of all the outstanding items in the inquiry and the possibility of having to engage either the previous or a new legal practitioner of my choice.”

She pointed out that a new legal representative or team would have to go through at least a 65,000-page record. The four days allocated for the rest of her testimony, which has to cover issues raised during the evidence of 18 witnesses, was “totally unrealistic”, she said.

Witnesses traversed a number of issues including HR-related matters, legal costs of the office and the public protector’s investigations and reports, including those on the Vrede dairy farm, CIEX and the so-called rogue unit at Sars.

In the court papers Mkhwebane is also challenging the legality of the “committee meetings” held in her absence where the inquiry’s evidence leaders made presentations to MPs. She charged this was “illegal conduct” by the committee.

Mkhwebane’s letter was in response to correspondence by Dyantyi two days earlier in which he informed her that the inquiry would resume on Monday.

Dyantyi also shared the committee’s programme, telling Mkhwebane its work would have to be concluded within the R4m budget.

“You will agree that I have to be alive to the fact that the issue of legal costs has not been resolved by the waving of a magic wand which will allow for uncapped expenditure.

“I am extremely cognisant that the process must be concluded in a manner which does not attract criticism for wasteful or unnecessary expenditure of public funds, both on the side of parliament and the PPSA.

“I do this mindful of your right to a fair process and I am firmly of the view that the draft programme is reasonable and fair,” he said.

After about an hour of discussions, the committee decided to postpone proceedings for a week.

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