Public protector’s office ‘isn’t obliged to fund Mkhwebane’s legal fees’

The Office of the Public Protector (PPSA) says suggestions that Busisiwe Mkhwebane is entitled to funding for her legal representation in the inquiry into her fitness to hold office isn’t supported by the presidential minute containing the conditions of her suspension. 

There also is no judicial authority or precedent obligating the office to fund the suspended public protector’s right and access to legal representation in the section 194 committee proceedings in the judgments of the Constitutional Court and high court, the PPSA said. 

On March 1, acting public protector Kholeka Gcaleka wrote to Mkhwebane, informing her the office wouldn’t be able to fund her legal representation at the inquiry beyond the 2022/23 financial year which ended on March 31. 

When Mkhwebane’s advocate, Dali Mpofu, announced on March 31 it was his last day representing her, he said everyone accepted the public protector was entitled to legal representation as determined by the Constitutional Court after lengthy argument.  

The debate was whether that burden should be carried by the office or another organ of state, he said. “Our position is that clearly, the state bears that duty in whatever guise.”

The Constitutional Court judgment Mpofu was referring to concerns the constitutionality of the rules adopted by the National Assembly to govern the removal of heads and commissioners of Chapter 9 institutions. 

The court stated: “When the section 194 inquiry formally proceeds, the public protector will be entitled to full legal representation in the committee proceedings.”

On March 31, Mkhwebane told the committee she did not “bring herself” to the committee, adding that Gcaleka and PPSA CEO Thandi Sibanyoni should avail the resources for her representation

The PPSA said before March 31 it was permitted to fund Mkhwebane’s representation at the prerogative of the accounting officer, as provided for in the Public Finance Management Act and National Treasury regulations, on condition that costs were reasonable, budgeted for and that the funds were available. 

The PPSA said it had resolved, as far as resources would allow, to fund the reasonable costs of her defence in the committee proceedings.

“The reality, however, is the costs, now about R26.5m excluding invoices expected for March, have far exceeded the initially projected costs of R4.5m and any reasonably anticipated costs.”

Committee chair Qubudile Dyantyi said the committee — though it had no role in assisting in issues of legal funding — had been monitoring progress in negotiations to secure funding for Mkhwebane’s legal representation.

“We are assured by role players who are involved that serious work is being done to ensure a speedy conclusion of the matter,” Dyantyi said on Wednesday.

The committee will meet again on April 11.

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