Mkhwebane’s legal funding claims are untrue, says public protector’s office

Suspended public protector Busisiwe Mkhwebane’s insinuation in her section 194 inquiry in parliament that her office has defaulted on funding obligations is untrue, it says.

The public protector’s office (PPSA) also rejected her suggestion that it deliberately intended to frustrate her right to legal representation in the inquiry into her fitness to hold office. 

On Monday, Mkhwebane said she could not continue to take part in the inquiry because her legal team had not been paid since December. She told the inquiry that the outstanding balance, 30% of the fees, was made up of items that were the subject of “baseless” disputes raised by the office.

Responding, the PPSA said when the inquiry commenced it committed, in principle, to fund reasonable costs of Mkhwebane’s defence.

The office said in June 2022, soon after her suspension, her attorneys submitted a significant invoice for litigation in high court matters between the public protector, the speaker of parliament, the chairperson of the section 194 committee and the president in respect of the so-called impeachment process.

The PPSA said this invoice became a subject of dispute because it emerged that the law firm was historically permitted to charge office rates that did not conform with its tariff of fees. Efforts to have the firm realign its invoice with that of the office’s structure and format were unsuccessful.

The first invoice rendered to Mkhwebane during the section 194 proceedings was received on September 6 and related to counsel’s fees. It was settled on September 14.

Soon thereafter, and despite the impasse between the office and Mkhwebane’s legal team, the PPSA resolved to settle earlier outstanding invoices in relation to high court matters to avoid derailing the inquiry.

The office said between December 15 and 18 it received four invoices, including those for attorneys’ fees from the commencement of the proceedings until September 2022, as well as significant counsel’s fees from July to September.

“When the invoices were received, the PPSA was scaling down its operations.... The PPSA proceeded with the verification of invoices as soon as the office resumed its ordinary activities in January.”

The PPSA said Mkhwebane’s legal team was informed that owing to the large amounts of public funds involved, historical challenges and the risk surrounding conformity with its fee structures and fiscal governance requirements, it was meticulously verifying tariffs and fees.

The PPSA said the outcry by Mkhwebane’s legal team that the office sought to embarrass her, financially ruin her legal team and undermine the section 194 committee’s work were levelled under circumstances where valid grounds existed for querying and disputing the reasonableness of the fees in terms of the rules of the Legal Practice Council that applied also to the legal practitioners involved.

The PPSA said it took extraordinary measures to advance disbursements to make travel and accommodation bookings for Mkhwebane’s lawyers.

“As recently as February 9 and 10 2023, the PPSA effected payment of ... 74% of the claimed amount.”

Acting public protector Kholeka Gcaleka said section 194 committee proceedings had saddled the office with unbudgeted responsibilities. The office said the portfolio committee on justice had resolved to arrange a meeting with the speaker of the National Assembly to find solutions.  

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