Unanswered questions, Part Three: Seeking clarity on role of ‘legal adviser’ Paul Ngobeni in Mkhwebane’s high-profile cases

17 Jul 2023

Giving evidence at her year-long impeachment inquiry, suspended Public Protector Busisiwe Mkhwebane acknowledged she had been wrong in law when compiling certain reports.

Her use of both the Prevention and Combating of Corrupt Activities Act (Precca) and a 2007 version of the ethics code instead of the promulgated 2000 legislation in her investigation into campaign funding for then deputy president Cyril Ramaphosa, were all opinions provided by Paul Ngobeni, Section 194 evidence leaders noted.

Ngobeni is neither a senior counsel nor is he registered to practise law in South Africa. When Advocate Dali Mpofu, still representing Mkhwebane, took her through her testimony earlier, both studiously avoided referring to Ngobeni in any way.

Read more in Daily Maverick: Uncovered — Paul Ngobeni, the fugitive mind behind Busisiwe Mkhwebane’s court defeats

In their 119-page list of questions, evidence leaders noted how astronomical legal costs could have been avoided had the suspended Public Protector made these concessions “at the time when the application was brought in the high court”.

Mkhwebane had also subsequently conceded that the crime of money laundering – a finding she made against Ramaphosa – was not contained in the Precca and that her reliance on this was “a material error in law”.

“The reference to Precca is in an opinion that had been prepared by Mr [Paul] Ngobeni which had been provided to PPSA, under the letterhead of Seanego Inc. and was inserted into the CR17 Report at the behest of Adv Mkhwebane,” noted the committee’s lawyers.

For purposes of providing this advice, Ngobeni had been appointed with Mkhwebane’s knowledge and had consulted with her to render advice, “despite not being a qualified legal practitioner in South Africa”.

And most essentially, the question of “on what basis, given the context of section 4 of EMEA, is Adv Mkhwebane empowered to investigate a political party’s election campaign simply because it was raised in correspondence? Where does EMEA provide for own initiated complaints?”

Ngobeni in the huddle

The evidence leaders were keen to learn in the light of an email chain presented as evidence at the inquiry whether the incorrect use of legislation had indeed arisen with Ngobeni.

Ngobeni, who has been referred to variously as “doctor” and “advocate”, not only advised Mkhwebane on key matters including her impeachment inquiry, the CR17 investigation, the Vrede dairy matter, the SARS “rogue” unit investigation as well as the Reserve Bank/Ciex matter, but also acted as a hired gun, penning propaganda attacking the South African judiciary.

Read more in Daily Maverick:

Unanswered questions, Part One: Evidence of secret meetings with Jacob Zuma and SSA involvement unchallenged by Mkhwebane

Unanswered questions, Part Two: Mkhwebane fails to clarify possession of classified IG report used for SARS ‘rogue unit’ probe

When Mkhwebane took Pretoria High Court Judge Sulet Potterill’s searing judgment of the PP’s SARS report on appeal, she had insisted that Ngobeni’s “services” be used.

“On what basis did Adv Mkhwebane give an instruction for Mr Ngobeni to assist in the matter and is it so that he was then paid by the senior counsel on brief for work done?” they asked.

Was it not unusual for a client to “give an instruction for a consultant to assist in a matter and indicate that the SC’s appointment is to be subject to such appointment and then for that consultant’s fees not to be paid by the instructing attorney, but by the SC?”

Besides, given that Ngobeni had rendered invoices, “does this not reflect that he had a clear belief that he was to be paid – that was until the CEO queried payments?”

Furthermore, the evidence leaders asked whether Ngobeni’s engagement was “in contravention of procurement regulations”, and for proof of “any document approving the departure from SCM prescripts”.

Mkhwebane’s evidence was that there had been “confusion” with regard to the 2000 Code and the 2007 Code, “which confusion is mentioned for the first time to this Committee. Why was this confusion not raised in court papers?”

The committee’s legal team inquired as to how different versions of the code came to be used.

Tight rein

So far, evidence with regard to the CR17 and SARS investigations has been that Mkhwebane kept a tight rein within the office, with only chief investigator Rodney Mataboge reporting directly to the PP.

Emails between Mkhwebane and Mataboge had referred to “sharing” a draft SARS Unit and CR-1 reports with “C” for finalisation. During the inquiry, Advocate Dali Mpofu, for Mkhwebane, had suggested that “SC” had been a reference to advocate Musi Sikhakhane.

Was the assertion by Mkhwebane that Watson had denied donating to the NDZ campaign ‘not incorrect’ considering the recorded exchange between the PP and Watson?

“Was Adv Sikhakhane SC involved in the SARS Unit report? If so, how were his services procured and would it be reasonable to assume that his fees for doing so would be reflected in fee notes, reference to the work product rendered to Seanego Inc?”

If “SC” was not Sikhakhane, who was this “SC” and how were his or her services procured?

Polony in the sandwich

The CR17 Report had alleged that Bosasa donor Gavin Watson had indicated initially that he had also donated to the campaign of the erstwhile candidate for the ANC presidency, Nkosazana Dlamini Zuma, but that he “later retracted this in an affidavit, claiming he had never donated to her campaign”.

The evidence leaders then set out a conversation between Mkhwebane and Watson in which he claims to be “the polony in the sandwich” and that he had indeed donated to both Ramaphosa and Dlamini Zuma.

“You see, my sister, I helped both of them; I helped both of them. I don’t want to get into those things but I helped them both and they both know it,” Watson told Mkhwebane.

Was the assertion by Mkhwebane that Watson had denied donating to the NDZ campaign “not incorrect” considering the recorded exchange between the PP and Watson? the evidence leaders asked.

Mkhwebane has missed three deadlines to provide her impeachment inquiry with responses to oral and written questions with regards to the complaints she faces.

In the meantime she has continued to seek the recusal of committee chair Qubudile Dyantyi. While R4-million has been set aside for Mkhwebane’s legal fees, she has habitually placed obstacles within the process.

In Part Four, the concluding piece, we unpick the Vrede report. DM

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South Africa

Ngobeni in the huddle

Tight rein

Polony in the sandwich