Mkhwebane’s legal costs have spiralled out of control, but she is still entitled to a defence

Suspended Public Protector Busisiwe Mkhwebane and her legal representative, Dali Mpofu, are not known for their fidelity to the facts or the law (see for example, here, here and here).

It is therefore not surprising that they have claimed over the past week that the refusal by the Public Protector’s office to continue paying her escalating legal costs was part of a campaign to vilify and humiliate Mkhwebane, and that continuing with the impeachment inquiry in the absence of her legal representatives would be illegal, unlawful and unethical and an infringement of Mkhwebane’s rights.

In reality, the facts and the law do not seem to back up these claims – although an argument could be made that any Chapter 9 public office bearer facing an impeachment inquiry should be entitled to the payment of reasonable legal expenses incurred during such an inquiry, as this was necessary to ensure the fairness of the process.

The first obvious point to make is that the Constitutional Court did not, as suggested, rule that Mkhwebane was entitled to legal representation of her choice at state expense. The Public Protector did not raise the matter of who should carry the cost of such legal representation before either the high court or the Constitutional Court and neither court considered this question.

In Speaker of the National Assembly v Public Protector and Others; Democratic Alliance v Public Protector and Others the Constitutional Court did invalidate the National Assembly rule that allowed for legal representation before the impeachment committee “provided that the legal practitioner or other expert may not participate in the committee”. The court amended the rule to read that the section 194 committee “must afford the holder of a public office the right to be heard in his or her defence and to be assisted by a legal practitioner or other expert of his or her choice”.

The court pointed out that in our law “there is no free-standing or absolute right to legal representation in fora other than courts of law”, but held that it was irrational for the rules of the National Assembly to allow full legal representation for a president appearing before an impeachment committee in terms of section 89, but not for Chapter 9 office bearers appearing before an impeachment committee in terms of section 194.

This conclusion was bolstered, according to the court, by the fact that judges “are also entitled to full legal representation during a hearing held by the Judicial Conduct Tribunal to determine whether a judge should be removed [from office] due to allegations of incapacity, gross incompetence or gross misconduct”. (The relevance of this point will be addressed below.)

However, this is not the end of the matter as the court also pointed out that in terms of rule 129AD(2), the committee must ensure that the inquiry is conducted in a reasonable and procedurally fair manner and that a “reasonable and fair procedure requires full legal representation for the public office bearer facing impeachment”.

An argument could therefore be made that the state has an ethical duty to fund the reasonable cost for the legal representation of any Chapter 9 office bearer appearing before an impeachment committee to ensure that the process is reasonable and fair.

But this is not the contention advanced by Mkhwebane and her legal team. Instead, they seem to be arguing that the state has an unlimited obligation to fund any legal cost incurred by the office bearer, no matter how exorbitant.

Spiralling costs

As Mkhwebane is not indigent, and as the Public Protector’s office has already spent millions of rands on her legal fees, it could hardly be argued that she is a vulnerable person who requires Legal Aid funding.

Funding issue