Mkhwebane’s legal fees of R159 million have affected operations at the PPSA office, colleague testifies

Suspended public protector Busisiwe Mkhwebane has spent nearly R159 million on legal fees in her six years in office, “significantly” affecting operations in the Office of the Public Protector (PPSA).

On Wednesday, it was senior manager for legal services in the PPSA, Neels van der Merwe’s turn to testify before the parliament’s Section 194 inquiry into Mkhwebane’s fitness to hold office.

Senior manager’s testimony

“Given that the bulk of the PPSA budget is spent on its [employment costs] … the remaining funds have to be used to fund the operations of the PPSA countrywide, to conduct investigations, outreach, administrative costs like stationery and telephone expenses etc,” Van der Merwe said.

“With burgeoning litigation costs, it obviously meant that other costs had to be curbed.

“This also meant that investigators were restricted from conducting investigations physically. They became unable to interview witnesses in person or to source the services of expert witnesses,” said Van der Merwe.

He said the burgeoning legal costs also had a “significant impact on training”.

Quality of investigations compromised

“All of this impacted on the quality of the investigations conducted and would have a knock-on effect on the quality of the reports that could be produced,” Van der Merwe said.

“It results in the number of reviews increasing, resulting in greater legal costs and less money being available for operations.

“Even in cases where the PPSA has not opposed, courts have awarded costs against the PPSA.”

Public Protector spokesperson weighs in

Asked if the PPSA had legal practitioners to deal with the daily issues which arose, PP spokesperson Ndili Msoki said the PPSA “did not wish to make any comment on the evidence currently being ventilated by the Section 194 committee”.

However, he said, while the institution has many legally trained employees, “the Legal Practice Act distinguishes between practising and nonpractising practitioners”.

“Accordingly, our employees do not attend to litigious matters on behalf of the institution,” Msoki said.

“We have a panel of attorneys, situated all over the country, who represent the institution in matters arising out of issued reports, commercial transactions and other related matters, as and when they may arise.”

Breakdown of payments

In its daily round up of the Section 194 proceedings, the committee noted that some of the spend included the public protector “spending R213 000 on a legal opinion relating to whether Adv Mkhwebane could receive crowdfunding to pay for a personal cost order of R226 621 issued against her in the Reserve Bank case”.

“It further includes over R200 000 on obtaining a legal opinion on the appointment of Adv Mkhwebane’s special advisor.

Further legal opinions were obtained relating to the lawfulness of her appointment of the [chief executive officer], Mr Vussy Mahlangu, who tendered his resignation two days after the legal opinion confirmed that his appointment was unlawful,” the committee recorded.

Seanego Attorneys received the lion’s share of legal instructions, totalling approximately R55 million for services rendered from June 2018 to May 2022, with Mkhwebane’s council Adv Dali Mpofu receiving R12.27 million in fees.

“Other payments listed were to Adv Bright Shabalala, who is currently also part of the PP’s legal team for the inquiry, who received R9.12 million; Adv Muzi Sikhakhane, SC, who received R4.7 million; Adv Vuyani Ngalwana, SC, R4.7 million and Adv Thabani Masuku, SC, R4.5 million,” the committee noted.

Van der Merwe said more reports had been issued by Mkhwebane than had been the case with her predecessors.

“As reports became more of a focus and more reports are produced, it has meant more reviews, Van der Merwe said.

“As more reports are produced – which is time- and labour-intensive and costs more as opposed to alternative dispute resolution – this makes the position even more precarious.”

He said it must be borne in mind the PPSA is an ombud.

“Even after the Constitutional Court confirmed the binding nature of the PP’s remedial action and the fact that it has a ‘legal effect’, it has no enforcement mechanism to ensure that the remedial action which it imposes be complied with,” Van der Merwe said.

“However, the remedial action must be complied with. “This gives rise to review applications.”

The committee adjourned the hearings until next Wednesday and the confusion remains over whether Mkhwebane’s legal team, ironically Seanego Attorneys, is actually on board or not.

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– amandaw@citizen.co.za