Public protector’s office probing whether Mkhwebane owes it money

The office of the public protector is combing its financial records to determine if it mistakenly paid for any of former public protector Busisiwe Mkhwebane’s legal costs in the past and, if so, if it can recover them. 

Mkhwebane was found by the National Assembly on September 11 to be guilty of incompetence and misconduct and removed from office.

Informal discussions have been held with National Treasury on the matter and CEO of the public protector’s office, Thandi Sibanyoni, told MPs during a briefing to parliament’s justice committee on the 2022/23 annual report that she anticipated finalising it in the next few weeks. 

“There were personal cost orders given to the former public protector and at some point we got a sense that some could have been paid by the Public Protector SA (PPSA). We want to do all the calculations of every money that we could have paid which we shouldn’t have paid as an institution from 2016 to date to make sure that when we approach Treasury we do so holistically because we don’t want to go to Treasury on a piecemeal basis,” Sibanyoni said. 

“We have to go through all the legal invoices from 2016 to pick up those we shouldn’t have paid as the public protector. A case in point is the matter of the public protector versus the DA which is a defamation of character matter.

“We understand that the institution paid for that and we believe we shouldn’t have paid for it as an institution because the institution was not the one that was defamed but it was an individual. We believe we shouldn’t have paid because the matter happened before the (former) public protector assumed office. So it was not supposed to be paid.” 

A full calculation would be made of everything that needed to be recovered after which an approach would be made to National Treasury in the next few weeks for guidance as to what process to follow to recover the money from Mkhwebane. There is uncertainty as to what action can be taken seeing that she was the executive authority and not an employee.

One of the issues to include in this amount is the R2.1m spent by the office on Mkhwebane’s accommodation while she was public protector. She was advised that the office could not pay for this and that she had to move to a less-costly place but this advice was not heeded.

According to a report by Daily Maverick, Mkhwebane moved into the R55,000 a month house in the exclusive Bryntirion ministerial estate in Pretoria in February 2017. This escalated to more than R60,000 in 2020. In mid-2021 she relocated to a three-bedroom duplex at a cost to the PPSA of R11,000 a month. 

Sibanyoni said the amount paid by the office for Mkhwebane’s legal fees and travel costs during the Section 194 inquiry into whether she should be removed from office amounted to R30.5m. An additional R900,000 has not been paid yet as it still needs to be verified that it is payable, acting public protector Kholeka Gcaleka said. This amount has been claimed by attorneys that withdrew their services. 

Gcaleka said in reply to a question by DA MP Werner Horn that her office was not responsible for the determination of any gratuity that Mkhwebane might be entitled to, which has been estimated at about R10m but which has been placed into question by her impeachment. Parliament has approached senior counsel for an opinion. 

She said the office had stopped paying Mkhwebane’s legal fees from the time she was suspended including some of the litigation in the Western Cape. 

ensorl@businesslive.co.za