The office of the public protector is projecting that it will have to fork out up to R15m this financial year for the costs incurred by Busisiwe Mkhwebane for her defence in the parliamentary inquiry into her fitness to hold office.
Carrying this cost has imposed a financial strain on the office and it would be detrimental to it if the inquiry continued in the next financial year as well, acting public protector Kholeka Gcaleka told MPs on Wednesday.
The office has established that some overbilling has taken place. At the start of the inquiry her legal team consisted of Dali Mpofu, two junior counsel and two attorneys. According to a News24 report in July 2022, the legal costs could total as much as R130,000 a day.
African Christian Democratic Party MP, justice committee member and lawyer Steve Swart believed the costs were “excessive”, bearing in mind that they were only for this financial year and given the office’s budget. He said the inquiry process, which started in July 2022, had taken a lot longer than anticipated.
Gcaleka told the justice committee that the office of the public protector is responsible for paying the “reasonable costs” of Mkhwebane’s defence, as well as her accommodation and flight costs, but not the costs incurred in her court applications related to the inquiry.
She said the office of the public protector was obliged to pay Mkhwebane’s costs as not doing so would have prejudiced the inquiry which was also focused on her actions as public protector.
The office received R4,5m at the onset of the proceedings but had already spent R2,7m. It was verifying the costs for the period July to September amounting to R6,4m. Invoices for the period October to January which had not yet been received were expected to exceed R5m.
“The office of the public protector is really not in a position to meet the full commitments of legal representation of advocate Mkhwebane. None of us had foreseen that it would have come to such an expense,” Gcaleka said.
“The costs were unforeseen and were neither budgeted for nor formed part of the baseline allocation,” Gcaleka said in her presentation to the committee. “Should additional funding not be allocated, the office of the public protector runs a risk of exceeding its allocated budget.” The budget for 2023 amounts to R358m, with personnel costs consuming 76% of this amount.
Gcaleka said operations of the office had also been affected by the need to prepare evidentiary material for the inquiry and by 11 staff members giving evidence. Volumes of information, financial statements and other records have had to be given to the evidence leaders of the inquiry as well as to Mkhwebane’s defence team. The office has also had to intervene in court processes to protect its interests.
Gcaleka noted that the inquiry had caused reputational damage to the public protector’s office and a rebranding exercise, stakeholder engagements and a wellness programme for staff had had to be undertaken which all entailed additional costs.
Director-general of the justice department Doctor Mashabane noted that the acting public protector had appealed to the Treasury for funding to cover the costs of the inquiry but was told to approach the justice department which had committed R9m with a further R6m possibly forthcoming for the rest of the financial year. No commitments could be made for the 2023/2024 financial year, he said.
“By the end of the month we will be able to see if we can allocate another R6m.”
The committee also met the other heads of institutions falling under the justice department — the information regulator, the Special Investigating Unit (SIU), National Prosecuting Authority, Legal Aid Board, office of the chief justice and the Human Rights Commission.
SIU head Andy Mothibi reported that the unit was owed R986m by departments and organs of state, with the justice department being responsible for R71m of this in December. Fees paid by entities investigated by the SIU under presidential proclamation constitute about 45% of its total revenue but the unit has been plagued by nonpayment. Nevertheless Mothibi said the SIU was in a sound, solvent financial position.
Mashabane said a large payment was made to the SIU in December and the rest would be paid when the department received the final report. The SIU has been investigating corruption in the state attorney’s office and in the master’s office.
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