Screaming matches, corrections and a disgrace: Another day of drama at PP's impeachment hearing

Suspended public protector Busisiwe Mkhwebane will call former DA chief whip Natasha Mazzone, who initiated the parliamentary impeachment inquiry into her fitness to hold office, to clarify her charge of “wasteful expenditure” on legal costs.

Mkhwebane’s advocate, Dali Mpofu, told the inquiry on Friday Mazzone’s name had been added to a “revised list of witnesses”.

“She will tell us exactly what she meant,” he said.

The issue relates to evidence before the committee, led through Neels van der Merwe, senior manager for legal services in the office of the public protector, that during her tenure Mkhwebane had spent R147m on legal fees.

This evidence was presented through a schedule which detailed names of law firms and advocates, what they had been paid and for what cases. Mpofu dubbed it the “hurtful schedule”, saying it was insulting to members of the legal profession who were now viewed as “looters” for providing professional services.

He said it was a violation of their human rights and was only being done maliciously. He said the naming of the lawyers was completely unnecessary — more so because Mazzone’s motion had specified an inquiry into “legal costs” and not “legal fees”.

Mpofu argued that legal costs were awarded by courts after rulings. Legal fees were paid to lawyers for services rendered. If Mazzone confirmed her motion was for an investigation into legal costs incurred (through court reviews of public protector decisions), “then the names which have been bandied about here were in vain because it is irrelevant”.

On Thursday, in response to the release of the names and earnings, advocates Muzi Sikhakhane and Vuyani Ngalwana — who were among those named — arrived unannounced at the hearing to object. Committee chair Qubudile Dyantyi gave them 10 minutes to “make their point”, suggesting they put their concerns in writing.

Sikhakhane, who said he was speaking on behalf of more junior advocates affected by the schedule, said it had perpetuated an “anti black narrative” and that those on the list were “RET tricksters”.

At the beginning of proceedings on Friday, evidence leader advocate Nazreen Bawa said through Van der Merwe, she wanted to correct some of the information on the schedule. She said she had discussed the issue with Mpofu who believed corrections should be made without the names “but I leave this in the hands of the committee”.

Dyantyi ruled the names should remain. It led to a fierce interaction between himself and Mpofu, with Mpofu arguing he was perpetuating the hurt and harm. 

Committee member and EFF treasurer-general Omphile Maotwe came to Mpofu’s defence. “Why are you so heated so early in the morning?” she asked Dyantyi. 

On a point of order, she said Bawa had indicated the committee — and not just Dyantyi — should make the decision. “That is not a point of order,” Dyantyi said. 

Maotwe responded: “Don’t do that, you are screaming like a child ... don’t do that.”

After the corrections were made — which involved, in part reallocation of some advocates' fees to others — Mpofu labelled it a “disgrace”.

Continuing his cross-examination, he said Van der Merwe and the evidence leaders were “barking up the wrong tree” because Mazzone’s motion was clear. 

“I shouldn’t ask you anything about it ... it’s not the business of the committee,” he said before proceeding to spend at least another two hours grilling Van der Merwe on the issue, and repeatedly asking if he was prepared to apologise for the “hurt, perceived or otherwise” he had caused.

Van der Merwe said he had simply complied with a request to assist the committee and took responsibility for his evidence.

“An apology has implications. It could mean I think the evidence is not relevant, or untrue. I cannot apologise. I cannot apologise for the consequences, or the results of my evidence.”

Mpofu then raised the issue that advocate Sikhakhane had, since the release of the schedule, withdrawn from a matter in which he had been briefed by the office of the public protector. This, he said, would mean that another advocate would have to be engaged, at huge cost to the office and the taxpayer.

Van der Merwe said he could not comment on that, because it involved “attorney-client privilege” and he was not mandated by the office to waive that. He said there were ongoing discussions between the office and Sikhakhane and he could not be held “personally liable”.

Mpofu said he was “waiving his own privilege” to record that he had actually earned much more than the R12m represented on the schedule.

“That is peanuts,” he said. “Let’s get that clear. I am worried about the junior members, the men and women who cannot protect themselves who you have abused and continue to abuse and refuse to apologise to ... but that’s fine,” he said.

Mpofu suggested Seanago Attorneys, which is representing Mkhwebane at the impeachment hearing, had not received the lion's share of legal spend, as suggested. He explained the law firm might have received about R55m — but said it had not received the most instructions.

Van der Merwe said: “I can confirm that it received instructions in 24 different matters — I can list them — that is the most of all firms.”

Mpofu suggested former public protector Thuli Madonsela had only briefed the “big white firms” such as Bowmans and Adams & Adams.

“This list confirms one thing — and one thing only, that that has since changed,” he said.

Turning to the hiring of controversial consultant and self-styled “advocate” Paul Ngobeni, Mpofu suggested the only real issue about this was that he had been paid (R210,000) from the legal budget and not from the communications budget. Evidence before the commission was that Ngobeni was used by Mkhwebane for both legal opinions in ongoing matters and communications, including attacks on those critical of her.

Ngobeni was facing criminal charges in the US and left the country before he could be disbarred.

Van der Merwe said the issue was not just one of budget but the manner of Ngobeni’s appointment and if proper procurement practices had been followed. He could not dispute Ngobeni had rendered services for which he had been paid.

Mpofu said Mkhwebane would testify she had been introduced to this “brilliant lawyer” by Sibusiso Nyembe, her former chief of staff. “She was impressed. He was even referred to as an SC [senior counsel],” he said.

Van der Merwe said: “I can confirm there were references to him as an advocate. I am not sure when it became known that he was not admitted. It might have been the case up to a certain point that she was not aware.”

The hearing is expected to adjourn on Friday until later in the month, when Mkhwebane and her witnesses are expected to begin testifying.

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