Dali Mpofu guns for inquiry evidence leaders while Public Protector Mkhwebane’s final hour nears

28 Nov 2022

Suspended Public Protector Busisiwe Mkhwebane has claimed that evidence leaders of her Section 194 impeachment inquiry should not be able to cross-examine witnesses, including herself, and should recuse themselves.

It took Busisiwe Mkhwebane’s legal representative, advocate Dali Mpofu, more than an hour to set out an intention to apply for the recusal of evidence leaders — advocates Nazreen Bawa and Ncumisa Mayosi — as the impeachment inquiry continued on Monday.

Mkhwebane and her team were set to lead evidence — however, the first witness had been unable to make the flight to Cape Town and would be arriving on Tuesday morning, the committee heard.

In the meantime, Mpofu made his application for recusal.

Nazreen Bawa, who escaped an earlier curveball application by Barnabas Xulu, Western Cape Judge President John Hlophe’s legal representative, was accused by Mpofu of “misconduct” and “bias”.

Read more in Daily Maverick: “Recusal requesters get legal mauling from Mkhwebane inquiry evidence leader”

As the date nears for Mkhwebane and her witnesses to lead evidence, it appears as if a strategy is being set in place that will attempt to protect her from the surgical unpicking of matters by Bawa and Majosi during cross-examination.

Advocates’ fees

According to Mpofu, Bawa’s most egregious conduct had been the flighting of a list of names of advocates who had been briefed by the Public Protector during her tenure, as well as the amounts that had collectively been paid to them.

On 11 November, Bawa, after apologising for flighting earlier incorrect figures, revealed that Mpofu had in fact been paid around R13-million in fees and not R10-million. Advocates Vuyani Ngalwana had received R3.4 million (not R4.7-million) and Muzi Sikhakhane R3.9-million (not R4.7-million).

Mpofu had quipped that his fee had been “peanuts” considering the amount of work he had put in.

The tallies of amounts paid to legal practitioners is an issue that has caused great indignation and “consternation”, so much so that Sikhakhane and Ngalwana personally addressed the committee after the revelations.

The advocates said their lives and those of their families had been placed at risk, and, in a stinging personal attack, Sikhakhane accused Bawa of having acted out of “spite and malice”.

‘Wrong impression’

In a statement to the committee on Monday, the Pan African Bar Association of South Africa (Pabsa) noted it was “very concerning… by listing the names of a select group of only Black Counsel who represented the Public Protector in a variety of matters of differing complexity and duration, the impression is created that the advocates listed are somehow complicit in the looting of public funds”.

This played, added Pabsa, into “the unfounded narrative of Black Counsel ‘fleecing the State’, which is reflective of the stereotyping that we continue to see in the media and in the profession”.

On Monday, Mpofu said that as advocates, evidence leaders “should have known” that flighting the tables (albeit at the request of the committee) was “prejudicial to the privacy and rights of their colleagues and prejudicial to the legal profession at large”.

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Meanwhile, Mpofu said Mkhwebane still intended to call President Cyril Ramaphosa, Pravin Gordhan, Natasha Mazzone and former Public Protector Thuli Madonsela as witnesses, and sought help from the committee in this regard.

Only Gordhan had responded, saying he was considering his “attitude”, said Mpofu. Mkhwebane also seeks to call acting Public Protector Kholeka Gcaleka who, according to Mpofu, had indicated her “unwillingness”.

Perjury charges

The committee heard earlier that Mkhwebane would not be able to make Friday’s sitting due to a “prior engagement” — which just happens to be her appearance in court on two counts of perjury.

The Constitutional Court found in November 2018 that Mkhwebane had presented a number of “falsehoods” in the course of litigation over her Reserve Bank report in which she sought to illegally alter the Constitution.

In February, the NPA announced it would be proceeding with two counts as there was a “reasonable prospect of success”. The complaint was originally lodged by advocate Paul Hoffman of the NGO, Accountability Now.

Mkhwebane was found by the Constitutional Court to have lied under oath in court documents in 2017 and 2018 about the number of times she had met former president Jacob Zuma and state security officials during the investigation into the SA Reserve Bank, and the purpose of those meetings.

Section 194 evidence leaders will not respond orally to Mpofu’s Monday application and will instead do so in writing.

The hearing is scheduled to get under way at 9.30am on Tuesday. DM

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South Africa

Advocates’ fees

‘Wrong impression’

Perjury charges