Wrong side of truth plus incompetence – documents reveal why Busisiwe Mkhwebane keeps losing in court

3 Oct 2022

The Public Protector’s frequent setbacks in the courts have come on the back of regular advice she took from Paul Ngobeni, who is neither a Senior Counsel nor a registered legal practitioner.

Paul Ngobeni is neither a Senior Counsel nor a registered legal practitioner, yet Busisiwe Mkhwebane regularly relied on his opinions in several key matters which unsurprisingly sank when they got to the courts.

This came at a cost to taxpayers, of course, as invoices from Ngobeni’s firm, Ngobeni Executive Consultants, and attached to letters in the Section 194 parliamentary impeachment inquiry into Mkhwebane’s fitness to hold office, have revealed.

The committee previously heard that between 2016/17, total costs to the Public Protector South Africa (PPSA) for “consulting and professional fees” amounted to R158-million, of which R147-million went towards “legal fees” alone. R52-million was spent by Mkhwebane on defending reports and R14.9-million on fighting her impeachment inquiry process.

Ngobeni was paid various amounts, the committee has heard, including R96,000 for a legal opinion on Mkhwebane’s failed CR17 report, later set aside by the courts, and around R30,000 for penning articles criticising former minister of State Security, Dipuo Letsatsi-Duba, and minister of Finance, Tito Mboweni.

The letters, emails and invoices between Mkhwebane, Ngobeni and officials at the PPSA are annexures to the letters sent by the committee secretary in the last week of September to implicated parties. They are now part of the public record.

The correspondence reveals also that Ngobeni and Mkhwebane plotted to craft a letter opposing Business Unity South Africa’s 2019 petition to remove her and that they attempted to pass this off as having been orchestrated by Andile Mngxitama’s “NGO”, Black First Land First (BLF).

Ngobeni, who has been referred to variously as “doctor” and “advocate”, not only advised the now suspended Mkhwebane on key matters including her impeachment inquiry, the Vrede Dairy scandal, the SARS “rogue” unit investigation and the Reserve Bank/Ciex matter — but was also paid to pen propaganda attacking the South African judiciary.

Email communication between Mkhwebane and her office as well as Seanego Attorneys (who were paid more than R14.9-million by Mkhwebane), indicates the significant role Ngobeni played in directing the tone and trajectory of the PP’s tenure.

‘Fugitive from justice’

Ngobeni, who in 2007 resigned from a position in Connecticut in the US before he could be disbarred for failing to appear in court in that state on charges of “forgery and larceny”, is also not registered with the Legal Practice Council (LPC) in South Africa.

In 2011, the Deputy Chief Clerk at the Connecticut Superior Court confirmed to then Public Protector, Thuli Madonsela, that a “rearrest warrant with a bond of $10,000” for Ngobeni “are still active as of today’s date”.

Madonsela investigated Ngobeni after his appointment as adviser to former Minister of Defence and Military Veterans, Lindiwe Sisulu. Madonselsa confirmed in her report that “Mr Ngobeni failed to appear in court … and he is a fugitive from justice in the United States of America”.

Since his return to South Africa, Ngobeni claims to have obtained a special “ministerial” exemption in terms of the Recognition of Foreign Legal Qualifications Act to act as a lawyer in the country.

This is the document Section 194 evidence leaders, advocates Nazreen Bawa and Ncumisa Mayosi, are now very keen to peruse.

Ngobeni has been requested now to furnish the inquiry with “a copy of the court order arising from the proceedings of admission as either an attorney or advocate and during which proceedings customarily an oath is administered to those wishing to practise law in South Africa and as a precursor to what would have been entry to the separate rolls of attorney and advocate”.

If he had not been admitted “as an advocate or attorney in a court of law, can you advise whether you are indeed the Adv. Paul M. Ngobeni as reflected on invoices totalling R46,000 in one instance”, the letter requests.

As the historic Section 194 parliamentary inquiry into Mkhwebane’s fitness to hold office nears completion, committee secretary Thembinkosi Ngoma and chair Qubudile Dyantyi have written to several parties requesting further documentation and evidence.

Services rendered

In letters to Ngobeni as well as Professor Sipho Seepe and writer Kim Heller, who were procured by Mkhwebane to orchestrate a campaign attacking the judiciary, the committee has sought to clarify what services exactly were rendered.

It has requested invoices and more information with regard to a 30 January 2019 instruction by Mkhwebane to check on Ngobeni’s availability in a matter as well as a draft he attached in an email to the Public Protector of an article he penned, titled “Mobilising the judiciary for political attacks on the Public Protector: Can justice be done amid efforts to intimidate and remove our Public Protector?”

“Can you advise where the said article had so been published?” requested the committee.

Emails between Ngobeni and the PPSA also indicate that Ngobeni had been provided with documentation in the Vrede Dairy matter and was requested by Mkhwebane to assist with the preparation of appeal papers.

“Can you confirm that you had drafted the notice of appeal from the judgment handed down by Potterill J as foreshadowed in these emails? If so for what fee, paid by who into which bank account?” asked the committee.

It asked whether Ngobeni could confirm “whether you were aware that such instruction was given on the basis that you were an advocate with senior counsel credentials, and if so, on what basis was it necessary for you to remain in the background?”

His involvement in the 2019 matter of Minister of State Security v Public Protector was questioned as well as an article penned attacking Judge Sulet Potterill’s judgment in the PP’s long-running Pravin Gordhan litigation.

The committee has asked Ngobeni “whether you had been instructed to draft this article/advice; whether you had received payment in respect thereof; how much you were so paid; from whom such payment was received; and into which bank account such payment was made.”

Ngobeni was also requested by Mkhwebane to advise on litigation by advocate Paul Hoffman of Accountability Now, as evidenced in the emails.

In his email to the PP, Ngobeni lashed out at Hoffman, who had written to the LPC after a scathing Constitutional Court ruling setting aside Mkhwebane’s CIEX/Reserve bank report in which she sought to alter the Constitution.

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“This is actually rubbish. We must ask for reconsideration: Failure to accord the Public Protector decisional independence exactly equal to that afforded the judiciary effectively nullifies the provision of Section 181 of the Constitution,” he thundered, adding that with regard to Hoffman, “We shall vigorously deal with his nonsense.”

Ngobeni added in the email to the PP that “The 4 acting judges will be gone and regular judges including Madlanga, Zondo etc. will deal with the matter.”

Heller and Seepe have also received letters from the committee secretary seeking full details of the registered entity created and put into place to render “communication services, thought leadership, research and investigative capacity” to Mkhwebane in 2019. The two “consultants” were paid through Ngobeni after he invoiced Seanego Attorneys.

The duo were also asked to furnish copies of all “articles, social media posts and details of other interventions conducted by yourselves in relation to the PP and/or the PPSA from February 2019 to December 2020.”

Meanwhile, Ngobeni launched an application in 2021 to be admitted as a legal practitioner, an action that has been opposed by the LPC. DM

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‘Fugitive from justice’

Services rendered