Suspended public protector advocate Busisiwe Mkhwebane is seeking to oust the two evidence leaders in parliament’s section 194 inquiry into her fitness to hold office, arguing they had caused “mayhem” by flighting fees earned by attorneys and advocates during her tenure.
The proceedings on Monday were expected to start with Mkhwebane calling her first witness. But her advocate, Dali Mpofu, spent most of the morning arguing about the “unfairness” of the one-hour time limit imposed on him by chair Qubudile Dyantyi and complaining that the committee and the office of the public protector had not assisted his client in calling witnesses.
He said, however, that there was now agreement that subpoenaing “unwilling” witnesses, Pravin Gordhan, former public protector Thuli Madonsela, former DA chief whip Natasha Mazzone (who kick-started the impeachment process through a motion) and acting public protector Kholeka Gcaleka, would start on December 6 and would be finalised during the committee’s December break.
He also indicated he would challenge the committee’s ruling that he could not call President Cyril Ramaphosa as a witness.
In his application for the removal of the evidence leaders, he said the main ground of misconduct related to flighting the names of advocates and attorneys and what they had earned under Mkhwebane’s watch in the six years between 2016 and 2022.
He said this was the “proverbial last straw”.
The evidence was led through the office of the public protector’s finance manager Neels van der Merwe earlier this month.
Mpofu said the evidence leaders, specifically Nazreen Bawa, had done this knowing that the proceedings were aired on YouTube and watched by millions of people.
The evidence leaders are advocates and knew it was prejudicial to their right to privacy and dignity and that flighting such amounts, without context, would be misleading “ to the committee, the public and paint the incorrect picture, with an imputation of looting”, Mpofu said.
“The evidence leaders failed to give prior warning to the advocates and attorneys and failed to give context to the figures, the period over which the fees were earned, the number of matters each advocate was briefed on, the complexity and volume of matters and the applicable tax deductions and other associated expenses.”
He said in some instances the amounts were inaccurate.
“It’s a major transgression — and it was completely irrelevant,” he said, advancing the argument that Mazzone’s motion had only called for a probe into legal costs (awarded by courts) and not legal fees (earned for professional work).
“It has nothing to do with wasteful and unauthorised expenditure which is the sting of that charge.”
He said the same offence had then been repeated, with the blessing of the chair, when the evidence leaders had sought to correct some inaccuracies on another day, which was a “most diabolical violation”.
This is after two senior advocates who had been named, Muzi Sikhakhane and Vuyani Ngalwana, had come unannounced to the committee to register their objections.
The two advocates subsequently put their concerns in writing before the committee, alleging that Bawa had wanted to portray black professionals as being corrupt “simply because she does not like them”.
“We reject her cruelty. She sought to perpetuate the common stereotype that black professionals can only have money by means of corruption ... that they are looters.”
Mpofu also presented as evidence a media statement by the Johannesburg Society of Advocates describing the “malicious” flighting of the names and fees as being without justification, regrettable and inappropriate.
The Pan African Bar Association said it had a direct and adverse impact on public perception of the professional integrity of counsel and had perpetuated the “unfounded narrative of black counsel fleecing the state”.
Mpofu said the conduct of the evidence leaders was racist, malicious, improper and unprofessional.
He disclosed that Ngalwana had laid a complaint with the Legal Practice Council.
“Even a child would understand that kind of conduct goes not only to bias, but to conduct which should not be associated with any democratic parliament anywhere in the world.
“You must at least pretend to have not made up your minds. We do know what the outcome is, but let’s pretend for the sake of the public that we don’t know. It’s a joke to waste the taxpayers’ money on something this important.”
Another complaint related to allegations that Bawa had “cross-examined” her own witness, former head of legal in the office of the public protector Thembinkosi Sithole.
“She adopted a hostile and adversarial attitude and posture against Sithole,” Mpofu said. “She repeatedly said ‘I put it to you’ ... this was outside her mandate. She was there to present evidence.”
Mpofu did not get a chance to elaborate on a third ground of complaint when Dyantyi told him his time was up.
Dyantyi adjourned the proceedings for the day to give Mpofu and the legal team time to read and give a written response to the written responses of the evidence leaders to the application.
He said the committee would deliberate on the application on Tuesday morning, after which Mpofu would have to call his first witness.
This sparked an angry response from Mpofu, who again complained that he wanted time to “finish his presentation”. He also suggested that the chair’s directions were indicative that the removal issue had already been decided.
Dyantyi told him to switch off his microphone.
“No, because you are shouting at me,” Mpofu said.
Dyantyi said: “Everything we do in life is time given. Even in church and in kindergarten. We have rules and I am not going back ... the committee will deliberate in the morning and will indicate its decision, either way, after that.”
The first witness for Mkhwebane is expected to be SA Roadies Association head Freddie Nyathela, in whose favour Mkhwebane found in a case against the National Arts Council.
The committee will sit until December 5, (with the exception of Friday) and will then adjourn until next year.
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