Madonsela vs Mkhwebane – PP face-off in impeachment inquiry to go ahead

It will be a first for South Africa when a former head of a Chapter 9 institution is called to offer evidence in a parliamentary impeachment inquiry into her successor.

It was then Public Protector Thuli Madonsela’s 2014 report “Secure in Comfort”, an investigation into irregular upgrades to Jacob Zuma’s Nkandla home, which altered the course of the former president’s political fortunes as he set sail into the turbulent Straits of Accountability. 

Madonsela’s successor, Busisiwe Mkhwebane, on the other hand, has been accused of weaponising her office and targeting senior government officials and cabinet ministers, including Pravin Gordhan (spending R15-million), in years of failed and costly litigation.

https://www.dailymaverick.co.za/article/2022-10-03-wrong-side-of-truth-plus-incompetence-documents-reveal-why-busisiwe-mkhwebane-keeps-losing-in-court/

It is several scathing court judgments, right up to the apex Constitutional Court, that have landed Mkhwebane at the impeachment inquiry, having to answer for her conduct.

Evidence by most of the 23 witnesses, who have testified since the inquiry kicked off on 11 July 2022, has been sensational, including that the State Security Agency (SSA) had deep links within the office.

Mkhwebane’s legal representative, advocate Dali Mpofu, has, throughout the proceedings, labelled witnesses as “disgruntled”  and having “an axe to grind” and Madonsela as “everyone’s favourite”.

Madonsela was initially asked to voluntarily appear as a witness by Mkhwebane in November, but declined, stating that information Mkhwebane sought was with the office of the PPSA. 

https://www.dailymaverick.co.za/article/2023-02-01-thuli-madonsela-tells-impeachment-inquiry-that-busisiwe-mkhwebane-banned-her-from-offices/

Madonsela added that, in any case, Mkhwebane had barred her from the offices after her appointment in 2016 and that “I see no rational connection of the majority of questions and the Section 194 inquiry which stems from court judgments up to the Constitutional Court regarding Advocate Mkhwebane’s integrity and her understanding of the PP’s constitutional mandate”.

Madonsela has now indicated she will be available on 1 March.

Squabbling over bills

On Day 51 of the inquiry and wrapping up a long, slow week in which very little was accomplished as Mkhwebane’s legal team stalled proceedings due to “non payment” of fees and one Mkhwebane’s witnesses proved mercurial, chairperson Qubudile Dyanti was in no mood for any further Stalingrad tactics.

The inquiry is expected to hand its decision to the National Assembly by the end of April 2023 for a vote to be taken on Mkhwebane’s impeachment.

In a letter to Mkhwebane and Mpofu, Dyanti had accused the duo of “purposely delaying” proceedings over issues of payment, to which both naturally took exception and which further delayed proceedings.

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The inquiry stalled on Monday 13 February when Mkhwebane appeared unrepresented and announced that her legal team had written to the PPSA to ask about payment for invoices submitted in November for work done in August and September 2022.

The PPSA had replied that three payments totalling about R9-million had been paid in September, of which R2.8-million had gone “towards expenses incurred by the inquiry”.

Parliamentary legal advisor Fatima Ibrahim informed the committee that the remaining amount was “presumably” related to the PPSA’s “ongoing litigation”.

Mkhwebane said her legal team had refused to continue to represent her until payment had been made.

The PPSA had subsequently informed the committee that delays in payment had been due to “discrepancies in some invoices” and that a verification process was being conducted.

It is not known whether the R4-million the PPSA paid to the Department of Public Works for Mkhwebane’s illegal stay in the exclusive Bryntirion ministerial estate in Pretoria since her assumption of office in 2016 will be recovered or even considered when the final tally is made. 

Mkhwebane was not entitled to this perk as part of her roughly R2.3-million annual salary included a housing allowance. 

https://www.dailymaverick.co.za/article/2022-07-14-free-rider-busisiwe-mkhwebanes-rent-free-stay-in-presidential-estate-cost-taxpayers-r3-7-million/

In March 2022, Daily Maverick revealed that Mkhwebane had moved into the exclusive ​​Bryntirion estate in Pretoria in 2017.

There, she lived rent-free in a R60,000-a-month luxury home before moving, in April 2021, to a smaller, three-bedroomed duplex on the estate at R11,000 a month.

A constant flashpoint has been the millions in taxpayers funds that have flowed out of the PPSA during Mkhwebane’s tenure, including R147-million in legal expenses, the bulk of which went to her private attorneys, Seanego.

Mpofu, the inquiry heard, had been paid R13-million in fees over the years, an amount he dismissed as “peanuts”, while Advocate Vuyani Ngalwana had received R3.4-million and advocate Muzi Sikhakhane R3.9-million.

Seanego Attorneys earned R55-million on 24 matters and bagged the bulk of work from the PPSA. The PPSA, under Mkhwebane’s watch, spent R5.9-million on failed litigation related to President Cyril Ramaphosa’s ANC election campaign, known as CR17.

In November 2022 Acting Public Protector Kholeka Gcaleka announced that the Auditor-General would be investigating the issue of the PPSA’s legal expenditure.

https://www.dailymaverick.co.za/article/2022-11-05-the-major-foes-of-sas-constitutional-democracy-star-in-busisiwe-mkhwebanes-fight-of-a-lifetime/

Key witness

Last week the committee was due to hear from senior investigator Bianca Mvuyana, who would have brought insight into Mkhwebane’s investigation into SARS, the discredited “rogue unit”report and other matters.

However, Mvuyana failed to provide a statement to Mpofu. While Mvuyana had been aware she was due to testify at the 194 Inquiry since November 2022, Mkhwebane’s legal team had been unable to obtain an affidavit.

Advocate Nasreen Bawa, evidence leader for the inquiry, said Mvuyana had stated to the committee that she preferred not to testify “as anybody’s witness” and claimed she had never refused to make a statement to Mpofu.

Vuyana said she had been informed by Ibrahim that she was entitled to make a statement but would only do so once the subpoena had been issued.

The committee accepted that Mvuyana would submit a written statement to the committee and that the proceedings would continue regardless.

It’s wrap, soon soon 

Closing proceedings on Friday, Dyantyi said the inquiry was “on a countdown” and that there were only three outstanding witnesses, including Madonsela and Mkhwebane.

The third witness is Rodney Mataboge, chief investigator with the PPSA, who is expected to testify on Tuesday as a result of Mvuyana’s claim that she was not prepared to give evidence if her direct supervisor (Mataboge) was not also summoned.

With so much back-and-forth disruption last week, DA committee member Mimmy Gondwe said she was beginning to question whether Mkhwebane was prepared to place her version of events before the inquiry. 

Time will tell. DM