'No legal obligation' to fund Busisiwe Mkhwebane's legal representation

Suggestions Busisiwe Mkhwebane is entitled to funding by the Public Protector South Africa's (PPSA) office for her legal representation in the inquiry into her fitness to hold office is not supported by the presidential minute containing the conditions of her suspension. 

There is also no judicial authority or precedent imposing an obligation on the PPSA to fund the suspended public protector's right and access to legal representation in the section 194 committee proceedings in the judgments of the Constitutional Court and high court, the office said. 

The PPSA was responding to questions about whether it was bound by law to fund Mkhwebane in the inquiry. 

On March 1, acting public protector Kholeka Gcaleka wrote to Mkhwebane, informing her the office would not be able to fund her legal representation at the inquiry beyond the 2022/2023 financial year which ended on March 31. 

When Mkhwebane's advocate Dali Mpofu announced on March 31 it was his last day representing her, he said everyone accepted the public protector was entitled to legal representation as was determined by the Constitutional Court after a long battle.  

The debate was whether that burden should be carried by the PPSA or another organ of state.

“Our position is that clearly, the state bears that duty in whatever guise.” 

The Constitutional Court judgment Mpofu was referring to concerned the constitutionality of the rules adopted by the National Assembly to govern the removal of heads and commissioners of Chapter 9 institutions.  

The court stated: “When the section 194 inquiry formally proceeds, the public protector will be entitled to full legal representation in the committee proceedings.”

On March 31, Mkhwebane told the committee she did not “bring herself” to the committee. She said Gcaleka and PPSA CEO Thandi Sibanyoni should avail the resources for her representation

The PPSA said before March 31 it was permitted to fund Mkhwebane's representation at the prerogative of the accounting officer, as provided for in the Public Finance Management Act and National Treasury regulations, on condition that costs were reasonable, budgeted for and the funds were available. 

The PPSA said it had resolved, as far as resources would allow, to fund the reasonable costs of her defence in the committee proceedings.

“The reality, however, is the costs, now about R26.5m excluding invoices expected for March, have far exceeded the initially projected costs of R4.5m and any reasonably anticipated costs.”

Committee chair Qubudile Dyantyi said the committee — though it was not one of the role players to assist in issues of legal funding — had been monitoring progress in negotiations to secure funding for Mkhwebane's legal representation.

“We are assured by role players who are involved that serious work is being done to ensure a speedy conclusion of the matter,” Dyantyi said on Wednesday before postponing the meeting to Tuesday

Meanwhile, Mkhwebane said President Cyril Ramaphosa has responded to a letter she wrote on Monday. 

She had where given him until this Friday at 1pm to respond to her demand that she be provided with legal support.

Mkhwebane had written a joint letter to the speaker of the National Assembly and Ramaphosa to intervene in the "illegal farce" currently taking place in parliament.

"They both acknowledged receipt, and the president asked for indulgence till next week," Mkhwebane said.

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