Section 194 inquiry on hold after Mkhwebane’s lawyers drop her for ‘professional reasons’

The Section 194 inquiry into suspended public protector Busisiwe Mkhwebane’s fitness to hold office will be on hold until she can find new legal representation.

The inquiry had to be postponed yet again on Wednesday as Mkhwebane arrived without her lawyers.

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The hearing was initially scheduled to resume on Monday after Mkhwebane was given a week to resolve the issue of her legal defence in light of the R4 million that was made available by the Public Protector’s office, which had already spent R30 million on her legal fees.

Mkhwebane has, however, expressed her dissatisfaction over the “unrealistic and absurd” R4 million.

She has since lodged a court challenge in regards to the funding of her lawyers, which she was entitled to as per a Constitutional Court (ConCourt) ruling.

Attorney drops Mkhwebane

At the beginning of Wednesday’s proceedings, Section 194 Committee chairperson Qubudile Dyantyi noted the statements made by National Assembly Speaker Nosiviwe Mapisa-Nqakula last week.

It was revealed during a parliamentary meeting on Thursday that the Section 194 Committee had requested to extend its programme to 26 June, but Mapisa-Nqakula rejected this.

The speaker expressed her wish for the inquiry to complete its work by the end of May as the National Assembly will be a constituency period from 15 June until 29 August.

“We equally share the sense of urgency and completion of our work,” Dyantyi said on Wednesday.

Parliament’s senior legal advisor Fatima Ebrahim then briefed the committee on the issue of Mkhwebane’s legal team.

Ebrahim told MPs that Seanego Attorneys has indicated that the firm will no longer act on behalf of Mkhwebane due to “professional reasons”.

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“[The committee] responded to ask what these professional reasons may be and invited Mr [Theo] Seanego to come before the committee and explain so the committee can have a better understanding of where we now stand because clearly the issue of whether the public protector can instruct Seanego is now a moot issue, if they are no longer attorneys of record for purposes of these proceedings.

“However, we have received correspondence from Mr Seanego this morning, indicating that he is not able to attend a meeting of the committee because of the issue of legal privilege that the public protector has not waived.

“In the absence of her explicitly waiving that professional legal privilege, she would not be in a position to explain to the committee what the reasons are for that relationship no longer existing. So where we stand now is that it is not clear whether the public protector terminated that professional relationship or it is because of action from Seanego,” she said.

Ebrahim said the office of the State Attorney was then approached to find whether legal services can be provided to Mkhwebane, but the Solicitor-General, Fhedzisani Pandelani, informed the committee that this was not possible because of a conflict of interest.

“They have, however, indicated that they can assist the Public Protector’s office with outsourcing of private attorneys.”

She said that the solicitor-general stated in his letter that the budget was not an “open checkbook exercise”, suggesting that there must be a renegotiation of fees and a “streamlining” of the legal team.

‘Mandate was terminated’

Responding to the matter, Mkhwebane told the committee that she never said she agreed to use state attorneys.

She said Seanego was her first option since the firm had knowledge about the inquiry, while Chaane Attorneys was her second choice.

“I didn’t even know that the solicitor-general was approached and I wouldn’t have agreed to that knowing the conflict of interest that the state attorney cannot act on behalf of both Parliament and the public protector,” she said.

“I cannot be told by the deputy public protector, Kholeka Gcaleka, that R4 million is available. At the end of the day, I am still the public protector and unfortunately I cannot, even when I was in office, involve myself in the appointment of attorneys.”

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She also pointed out that advocate Dali Mpofu, who was the lead counsel, had other commitments, but was willing to continue to represent her.

“They will available as soon as we have an attorney who will then brief them.”

Asked if she could give the reasons why Seanego no longer represented her, Mkhwebane said she could not say what was the issue from their side.

“I think at the core is that their mandate was terminated,” she said, adding that Seanego might have a lot of other work.

The suspended public protector highlighted that the attorneys dealt with her matter at a “very minimal, negotiated rate”.

‘Right to privilege’

But Ebrahim explained that the committee asked the Public Protector’s office to approach the State Attorney as a result of Seanego stating that Mkwebane would not have a problem with the option.

“Perhaps, we may have misunderstood your attorneys, but it was based on that [reason].”

She further asked if Mkhwebane will waive her right to legal privilege.

“I am not waiving my right to privilege. That’s between attorney and client and I don’t think it is fair for you to ask that,” Mkhwebane responded.

Mkhwebane said her office must speedily appoint another attorney of her choice.

The inquiry will proceed once her legal representation has been sorted out.

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