Ghosts of the past of “misleading” the court and the damning finding of “incompetence” as a public protector have come back to haunt advocate Busisiwe Mkhwebane in a challenge to have her barred from being a legal practitioner.
The Legal Practice Council (LPC) has applied to the high court in Pretoria for Mkhwebane to be struck from the roll of legal practitioners and no longer have the right to practise as an advocate, arguing she is not fit and proper for the job.
The application is pinned on parliament’s 2023 finding that Mkhwebane was incompetent as a public protector, which led to her removal. It also relies on adverse court findings and the LPC committee’s referral for her removal from the roll of legal practitioners.
Mkhwebane has indicated she will oppose the application in the high court.
“A person with this poor record cannot be allowed to act in public capacity, because that is what an attorney and advocate does,” said Koos Malan, emeritus professor of public law at the University of Pretoria.
The application seeking to have Mkhwebane lose the right to practise as a lawyer was bound to happen after parliament’s impeachment of her, Malan said, adding the council has a high chance of succeeding.
The respondent’s conduct reveals character defects which cannot be tolerated in a practitioner or officer of the honourable court and does not meet the standard of behaviour and conduct and reputation which is required of an advocate and an officer of the honourable court.
— Ignatius Briel, LPC Gauteng director
Parliament found Mkhwebane to have committed serious flaws in how she conducted her work as public protector and that she lacked an understanding of the law in decisions she made in some high-profile cases.
“I think it is high time that this is being done by the LPC. The kind of findings, based on evidence, that were made by parliament were based on very sound and strong evidence. I can see no way in which it can be tolerable for her to serve as a legal practitioner,” he said.
LPC Gauteng director Ignatius Briel, in a 656-page affidavit, describes Mkhwebane’s conduct as “unworthy” of an advocate.
“The council ... has concluded whether each complaint is considered alone, or all the complaints are considered cumulatively, the respondent [Mkhwebane] has made herself guilty of unprofessional or dishonourable or unworthy conduct,” Briel says in an affidavit.
“The respondent’s conduct reveals character defects which cannot be tolerated in a practitioner or officer of the honourable court and does not meet the standard of behaviour and conduct and reputation which is required of an advocate and an officer of the honourable court.”
The cases that have led to Mkhwebane facing the most serious action by the council include her litigation against the SA Reserve Bank, which was litigated all the way to the Constitutional Court.
Taxpayers paid R14.5m in legal fees in that case, and Mkhwebane lost.
Mkhwebane, in her “Lifeboat” report, had recommended parliament amend the constitution to strip the Reserve Bank of its independent power to protect the value of the currency.
She had made the recommendation after consultation with the presidency during former Jacob Zuma’s tenure.
The Reserve Bank challenged her recommendation.
The respondent [Mkhwebane] knowingly misrepresented or permitted misrepresentation of facts. The respondent failed to be and appear to be free of any undue influence or self-interest, direct or indirect, which may be regarded as being incompatible with her integrity or objectivity
— Briel
Parliament found Mkhwebane took advice from the State Security Agency in respect of the constitutional amendment.
Briel argues Mkhwebane’s conduct in the report was “grossly negligent” in that she did not question the advice on constitutional amendment, nor did she seek submissions from the Reserve Bank, the minister of finance and economic experts.
“In acting so recklessly, in pursuing unlawful and economically harmful conduct, in failing to observe the basic elements of procedural fairness and transparency, in acting so far outside of her powers and in failing to observe scrupulous honesty in her submissions to the courts, the respondent acted in a manner that would have destroyed a reasonable member of the public’s confidence in her ability to discharge her duties and functions.”
The other cases, which the council puts a spotlight on relating to the argument of Mkhwebane’s unfitness to be an advocate, include the Vrede Dairy Farm investigation and Sars Unit report, in which adverse findings were made against her in court and millions of rand were paid by her office in litigation.
Briel contends Mkhwebane damaged and affected the good standing and reputation of the legal profession as a whole, “consequently, she cannot be allowed to continue practising as an advocate”.
The council found Mkhwebane guilty of serious misconduct and breach of several provisions of the code of conduct of legal practitioners.
The breaches include the rule that a legal practitioner “shall take all reasonable steps to avoid, directly or indirectly, misleading a court”.
“The respondent [Mkhwebane] knowingly misrepresented or permitted misrepresentation of facts. The respondent failed to be and appear to be free of any undue influence or self-interest, direct or indirect, which may be regarded as being incompatible with her integrity or objectivity,” Briel says.
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