Strike Three – Mkhwebane ghosts Section 194 impeachment probe while lawyers collect fees

7 Jul 2023

Suspended Public Protector Busisiwe Mkhwebane has missed two deadlines to provide responses to questions arising out of her Section 194 impeachment inquiry.

This is regardless of the payment of about R500,000 to her lawyers of record, Chaane Attorneys, out of the R4-million ringfenced to take care of Mkhwebane’s legal costs for the last lap of her impeachment.

Chaane have sat on Mkhwebane’s matter for more than a month, said Qubudile Dyantyi, committee chairperson, in a statement on Friday.

Dyantyi added that a request for another 30 days “appears to be deliberately geared to create an inevitable and untenable situation where the committee and the National Assembly will not be able to fulfil its constitutional obligations, despite the time and resources ploughed into this matter”.

Mkhwebane was about to ignore a third deadline offering her an opportunity to provide a closing statement defending her case, he said.

The chair of the multiparty committee announced that Mkhwebane had missed a 7 July deadline to respond to written questions by members and evidence leaders.

Grave concern

The committee had noted “with grave concern” Mkhwebane’s radio silence ever since.

These were not the first deadlines to be missed since the committee had been forced to “forge a new path after various challenges and delays”, said Dyantyi.

All this is despite the R4-million set aside to pay Mkhwebane’s legal fees and the fact that she had been granted permission to retain all three of her counsel at increased fees.

Two deadlines, 19 and 22 June, had been set for the suspended public protector to submit additional affidavits and documentation. Questions have been sent to her lawyers of choice, Chaane Attorneys.

Read more in Daily Maverick: Mkhwebane misses inquiry deadlines while lawyer bounces back after sudden hospitalisation

“The due date for responding to these questions was yesterday, 6 July 2023. It is unfortunate that the PP has decided to disregard this important process by not responding to the questions and thereby disrespecting the committee process as was agreed to by all participating Members on 9 June 2023,” said Dyantyi.

A deadline for Mkhwebane to indicate whether she would be making a closing statement in her defence was at the close of 7 July.

“Even though the PP has missed several deadlines, this is another opportunity for her to appraise the committee of her version of the events in terms of the motion before the committee,” said the chair.

Dragging their feet

Dyantyi urged the suspended public protector to use the opportunity to “take the public into confidence by utilising the platform being afforded to her”.

Mkhwebane and her attorneys, said Dyanti, had indicated that “they will not be bound by what they termed illegal deadlines set by the committee”.

Their excuse to the committee had been that counsel had not been briefed “to deal with the merits of the matter as Chaane Attorneys is still in the process of familiarising themselves with the record”.

Read more in Daily Maverick: Mkhwebane’s R10m payday only months away while impeachment inquiry silently continues

Dyantyi said that from 23 May 2023 to 4 June negotiations had taken place for the reappointment of advocate Dali Mpofu and two junior counsel.

More than a month had passed since Chaane Attorneys had been “on brief” and it appeared that Mkhwebane had still not instructed them, he said.

It was “very concerning” that Chaane Attorneys had taken the position that they needed a further month to familiarise themselves with the record “and that too is dependent on the ‘total availability of counsel’ during this period”.

Said Dyanti: “The precise purpose of this extended unlimited perusal for this long period and how it was arrived at is, of course, undisclosed, especially since approximately R500,000 or more of the allocated R4-million has, according to your letter, already been utilised (which I estimate to be minimum 20 full days of services already rendered by Chaane Attorneys).”

Read more in Daily Maverick: While Mkhwebane’s spell in office draws to a close one way or another, search begins for her successor

He suggested that it would appear that an instruction to brief counsel on the merits “may only be forthcoming from your client once the R4-million has been exhausted (or substantially spent) on unnecessary perusal fees coupled with the costs of a limited brief for purposes of bringing a recusal application”.

The committee, he concluded, would continue its work in terms of the timelines set. The committee is expected to finalise its work on 28 July 2023. DM

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Grave concern

Dragging their feet