In spending R147m on legal fees to pursue “certain cases”, suspended public protector Busisiwe Mkhwebane had compromised the constitutional mandate and the operations of her office.
“It is relevant how the money was spent and on which cases,” Neels van der Merwe, senior manager for legal services in the office of the public protector, said during cross-examination on Thursday at the parliamentary inquiry into the fitness of Mkhwebane to hold office.
Van der Merwe had, at the instance of evidence leaders, compiled a list of attorneys and advocates who had been paid to handle cases during Mkhwebane’s tenure.
The fact that the lawyers were named — and the amounts they received in fees were listed — has raised the ire of Mkhwebane’s Adv Dali Mpofu, who said public perception was that they had not earned their fees but were “looters”.
During cross-examination, he referred to it as “the hurtful schedule” — and questioned its relevance in terms of the allegations his client is facing, including one in which she is accused of incurring “fruitless and wasteful” expenditure in relation to “legal costs”.
Mpofu argued that legal costs were awarded by courts and were different from legal fees, which were paid to lawyers.
He said the “hurtful schedule” contained personal information which had no place or relevance before the committee.
But Van der Merwe said the spending on legal matters had affected service delivery.
“The bulk of the budget is spent on human resources — the remaining funds have to pay for operations and investigations.
“This [legal spend] is part of our operational costs. It is relevant how the money was spent and on which cases,” he said.
The purpose of the exercise (the schedule) was to show how cases were “selectively pursued”, which compromised the constitutional mandate of the office, other cases and service delivery.
“I speak with passion about this. We are expected to make a difference in people’s lives. Serving 52-million people, and with more than 1,000 organs of state, requires careful planning of resources,” he said.
I speak with passion about this. We are expected to make a difference in people’s lives. Serving 52-million people, and with more than 1,000 organs of state, requires careful planning of resources.
— Senior manager for legal services in the PP’s office, Neels van der Merwe
“It cannot be argued that what she has spent on a number of cases, in some R15m and R10m, is irrelevant.”
Mpofu suggested one of the highest spends on any one case was that surrounding her suspension, which was still to be heard by the Constitutional Court on November 24.
He said this case was probably clocking up close to R100m.
And it could have been avoided, as his client had pleaded for “reason” and wanted it resolved as far back as 2020.
He said the Pravin Gordhan matter in which the public protector was a respondent — had probably also racked up about R100m in legal fees.
All this, including the cost of the impeachment inquiry, was being borne by the taxpayer.
He said his client had been hounded by the DA even before she took up office.
She had also been characterised as a “mad woman who woke up one day and decided that the Reserve Bank should be nationalised”, and had been targeted because she had touched the “political and economic untouchables” because she had suggested an amendment to the constitution.
He said his client would give evidence to counter all allegations against her.
Earlier, he questioned Van der Merwe about his role, if any, in preparing the so-called SA Reserve Bank/CIEX report in which Mkhwebane recommended that the bank be nationalised.
Previous evidence was that the recommendation only emerged after Mkhwebane had met with officials from the State Security Agency.
Van der Merwe said he had been tasked by Mkhwebane to probe the issue from a legal point of view. He had become uncomfortable when he realised he was expected to base his report on a political manifesto from the Ubuntu Party and the views of “economist” Stephen Goodson.
He did his own research “in execution of the task I was given” but only prepared a draft of a report which, he understood, would be submitted to parliament’s constitutional review committee once it was completed.
But this did not happen because the SARB/CIEX report was released. He said he had no input or influence over that report.
But Mpofu said his client would say differently — that the contents of the report were the same as the one he was working on.
This was borne out by the fact that when there was a media enquiry — because of the reaction to the markets to the CIEX report — Mkhwebane had asked him to assist with the response.
Van der Merwe said it was because he had “expertise” on the issue and he was often asked to assist with media queries.
Cross-examination is expected to continue on Friday.
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