In a hybrid meeting of the Section 194 Committee , it was resolved to amend the Committee directives to allow it to present written questions to the Public Protector, which she may choose to answer orally or in writing. The decision was taken after the Committee was forced to postpone its hearings yet again, due to the PP rejecting the newly appointed Office of the State Attorney as her instructing attorney on the basis of conflict of interest.
The State Attorney’s Office stated that the PP had informed it that she rejected it to appear as her legal representatives She claimed that the State Attorney: Pretoria office had a conflict of interest as the State Attorney: Cape Town office was appointed the evidence leaders in enquiry. However, she did not object to legal representation from any attorneys on the database of the Public Protector South Africa (PPSA) but it had not provided this alternative. The State Attorney legal team did have a concern about its status as the PP had taken her legal funding to court.
In her input, Adv Busisiwe Mkhwebane highlighted that litigation was ongoing on some of the matters before the Committee. The PP again raised her request for the Chairperson to voluntarily recuse himself. The PP also queried if the additional R4 million allocated for her legal fees included counsel, travel, security and accommodation.
Following input from the Parliamentary Legal Advisor, the Evidence Leader, and Members, the Committee unanimously agreed to determine a new way forward as there had been many delays due to legal fees, appointing legal representation and ill health.
The Chairperson noted he would consider his recusal when a formal application was submitted by 13h00 that day.
Adv Mkhwebane referred him to a letter sent by her personal attorneys minutes before start of the meeting which requested him to provide reasons why he will not recuse himself. She added that she would not file a recusal application as she did not have any attorneys.
The Committee agreed to amend the directives to ensure a way forward. Questions would be collated and provided to the PP to respond to orally or in writing. The PP would be able to submit anything in writing that she wanted the Committee to consider. Should the PP fail to respond to the questions, the Committee would make its findings based on the evidence before it. The draft report would then be compiled for Members to deliberate on it. These inputs would be included, and the draft report would be shared with the PP for comment. The final report would be tabled in the National Assembly. The Committee intended finalising the enquiry within its deadline and within the additional R4 million that PPSA had made available to the PP.
Adv Mkhwebane objected to the new way forward, rejecting it as unlawful, and requested that her personal attorneys be briefed.
The Chairperson welcomed everyone to the enquiry. The Committee was resuming after having met on 7 June. The Committee had paused for a day to sort out what he regarded should be the last hurdles that the Committee needed to attend to. Therefore, to have a proper start, it was important that the Committee be informed in terms of where they had paused. He invited Mr Isaac Chowe from the Office of the State Attorney: Pretoria, to speak. There were a few matters that were important to put on record and Adv Chowe would briefly do that on behalf of the State Attorney's Office.
State Attorney briefing
Mr Isaac Chowe explained his status saying he stood as one of the attorneys from the Office of the State Attorney: Pretoria. He had been instructed by the PPSA to be the attorney of record for Adv Mkhwebane. His appointment started as the instructing attorney in order for him to facilitate the appointment of a private attorney who was supposed to have been briefed on the matter. In fact, HM Chaane Attorneys had been appointed but, due to developments, it happened then that HM Chaane Attorneys were debriefed from the matter. This meant automatically by default that the State Attorney became the attorney of record for PP, Adv Mkhwebane. Fast forward, it happened that he needed to proceed and appoint counsel in the matter. As matters stood, he had received numerous communications from his client, being the PPSA, and also communication from Adv Mkhwebane, where she had raised sharply the issue of the appointment of the State Attorney to represent her as the attorney of record.
His status or the State Attorney's status as the legal representative of Adv Mkhwebane was actually in dispute as she had raised in her correspondence and communication that as far as she was concerned, that the State Attorney could not be the attorney of record. In explanation, Adv Mkhwebane had stated that the State Attorney was conflicted in the matter. Therefore when the State Attorney was conflicted, it could not profess to be acting on her behalf. The genesis for the conflict of interest, as Adv Mkhwebane had put it, was that the State Attorney: Cape Town, the sister office, had appointed the evidence leaders in this hearing. Therefore it could not be that another State Attorney could now be acting for her on the opposite side.
On the basis of Adv Mkhwebane’s objections to the State Attorney: Pretoria being the attorney of record, he would suggest that once a client objected to the attorney representation, then it would be unethical for him to even start to proceed and address the Committee as an attorney of record for Adv Mkhwebane. There were other issues which Adv Mkhwebane had raised in her communication with him. He did not know if it would be appropriate for him to proceed to address the Committee on those issues which she had raised with him, but he would leave this to the Committee to guide him if he should put those on record. He would leave it there.
Discussion and Response
The Chairperson asked Adv Chowe if he had not briefed counsel given the status he is tabling.
Adv Chowe replied that in the course of the State Attorney: Pretoria being appointed as the attorneys of record, they had proceeded to issue “brief covers” to the three advocates who had been involved in the matter. The State Attorney: Pretoria had done that. However, just by way of an explanation, even though such briefs had been issued out, they seemed to have issues with their own status in that, because the main client did not recognise or agree to her representation by the State Attorney. Those briefs were also in dispute in that an attorney who has not been instructed properly by a client to issue such instructions or briefs to the advocate, those briefs in a way also become null and void. That was the situation they were currently facing.
Adv Chowe said that he had already indicated in his introduction that indeed there was a dispute raised by Adv Mkhwebane on State Attorney representation based on conflict of interest. Other than the status of the State Attorney in the matter and its inability to appoint counsel on behalf of the client, Adv Mkhwebane had raised the legal funding which had been allocated to her in this matter. Her contention was this allocation of funds for legal representation had no clear particularity on what this funded and what should be excluded or included. For example, if this particular amount is exhausted and the matter is still ongoing, was the condition that she must out of her own funds proceed to fund the legal representation. Another issue which Adv Mkhwebane had raised was that it must not be forgotten that the matter of her legal funding was pending before court. It could not be that they could proceed with the matter if this has not been resolved. It could then be taken for granted when Adv Mkhwebane was not satisfied with the way the conditions were set. It had been raised sharply that this matter was still pending in court and that as a litigant she was still entitled to prosecute that particular court application to its finality. What Adv Mkhwebane was articulating was that if her legal funding could not be resolved out of court, then the court would have to be given opportunity to listen to the parties on this.
One other issue which did not have much to do with legal representation but had much to do with the Committee proceedings was that Adv Mkhwebane had raised that there was currently a matter which needed to be dealt with on the constitution of the Committee itself in that the Committee Chairperson had to recuse himself. If that might not be reached, then the matter could not proceed. Unfortunately, the State Attorney: Pretoria had no mandate to move such a recusal application because of its status – which he had indicated earlier. Adv Mkhwebane’s letter to him and their discussions on the matter indicated that would be a matter of priority whenever this Committee started its hearings.
The Committee Secretariat had invited him to obtain available dates from the advocate to at least appear before the Committee. However, he also could not do that because of the problematic nature of the status of the State Attorney: Pretoria in the matter. He had to say he had not received any animosity or negativity in his communication with the advocates in this matter. They had been cordial all the time. The unfortunate part was that, due to the legal funding and other matters discussed, he was unable to properly and ethically take any kind of assurances of their availability and dates for hearings of the Committee. He hoped that he had covered all grounds. If there were any outstanding issues, he would attempt his utter best to attend to those.
The Chairperson asked for clarity if Adv Chowe was indicating that as a result of the PP’s objection, the hands of the State Attorney were tied.
Adv Chowe confirmed that 100% that was indeed so.
The Chairperson asked Adv Chowe if his client’s position was that already the R4 million was not enough, before the Committee even resumed for the 22 days set for the Committee.
Adv Chowe confirmed that that was his client’s position. Although it was just a technical issue, for all intents and purposes he was still the attorney of record for the PPSA, meaning the mother body. He still had instruction from them. But in as far as Adv Mkhwebane, who was also now supposed to be the actual client, that was indeed so. On the amount allocated, there was no clarification on whether it was not enough. He was unable to say that Adv Mkhwebane said the R4 million was inadequate. It might be inadequate in her view perhaps but what was problematic with the fund allocation seemed to be the conditions attached to it – specifically that she would have to bear out of her pocket any amount above the R4 million. He did not have instructions to say the R4 million was not enough. The issue was that if it gets exhausted, then she will have to bear this out of her pocket. That was the bone of contention.
The Chairperson said that it was not in Adv Chowe’s mandate to determine if the R4 million was not enough.
Adv Chowe confirmed that indeed the State Attorney’s Office had no mandate to determine the fees which needed to be allocated, if adequate or inadequate, in these particular hearings.
The Chairperson asked if Members had questions for Adv Chowe.
Dr C Mulder (FF+) asked if he understood correctly that the PP was declining the services that the State Attorney's Office was prepared to provide.
Adv Chowe replied that it was indeed so that the PP was declining to be represented by the State Attorney: Pretoria or any other state attorney for that matter, due to conflict of interest.
Mr B Nkosi (ANC) asked if the PPSA or PP had indicated an alternative if she declines this legal representation.
Adv Chowe replied that Adv Mkhwebane herself had indicated that she was open to accepting legal representation from the panel of attorneys which were on the PPSA database. She was not refusing to be represented as long as that representation was not the State Attorney.
Mr Nkosi said that the question was if the PPSA had indicated an alternative if Adv Mkhwebane does not accept.
Adv Chowe apologised for misunderstanding and said that the short answer was that thus far there had not been instructions on an alternative.
Mr A Seabi (ANC) asked Adv Chowe in his experience as the State Attorney's Office, if this happens, how does one move forward? Adv Chowe said that ethically there was a dispute. How does one resolve such matters so that we have a way forward?
Adv Chowe replied that this was his own view and not the instruction of any client or perceived client. If there was pending litigation on the matter, such applications or court proceedings needed to be finalised. But the first prize for him would be for the parties to come to a negotiated settlement on the funding. It was only when such negotiations failed that one would opt for the last option, being court proceedings, because they may delay the commencement. On representation, as an attorney, he understood the ethical boundaries. One may not proceed to represent a client who was totally against such an attorney, especially if there were concerns of patent conflict of interest.
Therefore, how it could be resolved is Adv Mkhwebane could head back to the PPSA office and give a mandate for a particular attorney to be appointed as her attorney of record from its panel of attorneys. It would depend if the PPSA will still want the State Attorney: Pretoria to be its attorney of record and proceed to appoint that particular private attorney as their correspondent. So, the State Attorney: Pretoria would remain the instructing attorney because they would be acting on behalf of the PPSA, and that private attorney would then become their correspondent. The State Attorney: Pretoria would have no control over the instructions so the issue of conflict of interest would be removed. Then the State Attorney: Pretoria would just be the instructing attorney, they would only be able to execute instructions which the PPSA provides and they would have very minimal say in what their correspondent attorney was doing in representing Adv Mkhwebane.
Mr Seabi asked in the view of the State Attorney's Office if there is a conflict of interest in this context.
Adv Chowe replied that this was a very difficult question because conflict about legal representation was actually a subjective matter according to him. This was because the complainant, if he may say so, was the one most suited to articulate her perception on bias or conflict. He was very much constrained to state “nay” or “yay” that there was conflict in the matter.
The Chairperson said the question was to explain that perceived conflict of interest in the context that there were two different offices. Do you still consider this as a conflict of interest?
Adv Chowe replied that he would perhaps put himself in a corner here in a way. In his experience as a senior attorney in the Office, it had happened many times where two agencies of government were represented such as the Independent Police Investigative Directorate (IPID) and the Minister of Police. There were matters where one would find that two government institutions would have a conflict. It did happen that the State Attorney handled those matters, one in the Johannesburg office and one in the Pretoria office, and proceed to finality. But he did not want to compare an institution and an individual because Adv Mkhwebane may have a different approach as to how she wanted to be represented. In his view, if Adv Mkhwebane said there was a patent – and she did not even say perceived – clear conflict of interest. One would have to give her an opportunity to articulate that conflict because if he were to say there was no conflict, it would be unfair to her because he would be standing here now as an arbiter to the facts, to which he was not actually entitled or even duty bound to resolve. So that was how he might, with due respect, evade the question.
The Chairperson said that ‘evade’ was very correct; he appreciated that. Was Adv Chowe’s understanding that there was no legal impediment for this Committee to proceed, because there was no interdict preventing it from doing its work?
Adv Chowe replied that it was so difficult to provide a legal opinion on the matter, because his perception as a legal practitioner, it connoted to a certain extent a legal opinion, which he had to say he had to put a caveat on such. It was correct that in terms of the South African legal system, that if a person does not have an interdict there is nothing preventing a particular issue to proceed, especially if there is no interdict. But he had to pause there and say, through his workings with so many matters, he had to raise one issue which he hoped he articulated correctly. This being something which was sometimes referred to, and he hoped that he had the right words, as “constructive contempt of court”. He did not know if there was something like that.
However, according to what he understood, if there were legal proceedings pending and they were essential to the determination of a right, then the parties had to respect that court process until it its finality and get a court order. His view was that if there was no court order or interdict, one would normally proceed with the matter. But, perhaps it was his own construction of a possible constructive contempt of court, if everyone were to proceed and they knew it was before court and tthat court needed to finalise it but in any event they proceeded. For example, one talked about [spoken in his vernacular]. He did not know how to explain it in English.
The Chairperson said that that was fine; he got that. He was not really asking for a legal opinion. He was just checking whether Adv Chowe would consider that – because this Committee had been there before and they had covered that ground. It was just for Adv Chowe to help the Committee confirm.
Mr B Maneli (ANC) noted that before communication from the PP, Adv Chowe’s interaction with senior counsel, which was the SC of choice by the PP, had no negativity and was cordial. If that was so, was there any sense of ethical issues or conflict of interest such that the SC was not prepared to come on board? He wanted to check that before the Committee discussed the way forward.
Adv Chowe hoped that he understood Mr Maneli correctly. Yes, indeed it was so that, even including Adv Mkhwebane herself, they had a very cordial relationship in communication and when addressing each other. It was very civil and, no, there was nothing of such even when the PPSA had raised this. He could not say that this was a recent development. Even in Adv Mkhwebane’s initial communications, when the State Attorney: Pretoria was mandated to take on the matter, she had always been consistent about conflict of interest. However, initially, when they had their communications, there was no objection on the State Attorney being the attorney of record for PPSA or appointing a correspondent for her, being HM Chaane Attorneys. There was no issue at all. He would suggest it became very clear when the private attorneys moved out of the way and the State Attorney had to take the position of being the actual attorney of record. That was where the issues came to a head and she had objected.
Mr Maneli said that he was asking about when Adv Chowe made this determination that the SC would be amenable to participate. There would have been interaction about the appointment of the SC. Other than the private attorneys matter now which reopened discussion about ethical issues and conflict of interest and the pricing issues, he wanted to check if there were hurdles before or that there had been matters that were agreed to.
Adv Chowe replied that the State Attorney must use the common adage, which was that the State Attorney was the creature of instructions. Whatever the State Attorney had done to date, had always been an instruction from the PPSA. The State Attorney had received all their instructions from the PPSA. It may have been that due to the urgency of the State Attorney attending to this matter and appointing the former attorneys, they may not have had an opportunity to have a detailed genesis of what had happened at the time of Adv Mkhwebane speaking to the PPSA. But all of the State Attorney’s instruction had been received from the PPSA. So it was difficult for him to say if it were not for certain issues, this matter would have gone smoothly. He was very much constrained about any other developments which might have taken place between the PPSA and Adv Mkhwebane. But all that had developed thus far was always on instruction from the PPSA.
Ms D Dlakude (ANC) noted that she had wanted to ask the same question if the SC of the PP’s choice had refused to work with Adv Chowe. She had listened to his response and she was satisfied.
Parliamentary Legal Advisor input on Adv Mkhwebane 6 June 2023 letter
Ms Fatima Ebrahim, Parliamentary Legal Advisor, said that she wanted to remind Members that this possibility of the State Attorney doing the briefing of counsel was raised in the last meeting. In fact, it was done twice in writing, most recently in the 6 June 2023 letter which contained demands. One of those demands was, “That the enquiry be postponed until the outstanding issues pertaining to my legal representation are resolved. This includes the recovery of my attorney from his current hospitalisation and the briefing of counsel of my choice by my attorneys and/or the state attorney, whichever is appropriately mandated by the PPSA.” So that was put squarely in written correspondence to the Chairperson. In fact, the PP was on record in this Committee after the R4 million had become available, saying – and she was told to instruct Seanego Inc at that time – that she could not do so, but that the PPSA must do so as its CEO was the accounting officer.
Members would recall that there was a tussle of correspondence on that particular issue. Given that Mr Chaane was hospitalised and so that costs are saved, the PPSA CEO had now been given this instruction in correspondence from the Solicitor-General (SG) recommending that the State Attorney be briefed for purposes of briefing counsel – so to act as the instructing attorney. Her understanding was that the State Attorney played a very limited role. For the purposes of the Rules, the PP’s legal practitioner of choice, which she was entitled to have, was Adv Dali Mpofu and his team. That had been made clear a number of times and Members would recall, in fact, that the attorneys of record, Seanego Inc, had played a very limited role during the hearings. It was therefore unclear now on what basis this objection was being raised because it was counsel that did the heavy lifting. Certainly that was the case for the State Attorney: Cape Town office briefing of the evidence leaders.
In fact, by and large, all the State Attorney was doing was facilitating the payment to the evidence leaders. The test for conflict was one of reasonableness. What would a reasonable person in the position of the PP believe about a conflict or not? It was not clear to her what this patent conflict was. In the last meeting she had indicated that there certainly were occasions when the State Attorney may be acting for more than one organ of state. Adv Chowe had now confirmed that. Adv Mkhwebane was at liberty to explain this. She personally could not see what the impediment was now in appointing counsel so that the process could now move forward.
The Chairperson asked if Adv Chowe had a quick reflection or comment on that.
Adv Chowe replied that his reflection was limited. As he had indicated, he did not have much to say as his status as an attorney was disputed. But he noted what the Member had indicated.
The Chairperson clarified that Ms Ebrahim was the Committee’s legal advisor. She was not yet a Member. She was the person who drove things on the Committee’s behalf to interact with the State Attorney. That was why he had referred to her as a colleague of Adv Chowe.
Mr J Malema (EFF) said that Ms Ebrahim spoke like a Member already.
The Chairperson said that he was going to give the PP an opportunity to reflect having listened to the discussion. Thereafter, the Committee would take a 15-minute break. When the Committee came back, he wanted to present a way forward.
Public Protector input
Adv Mkhwebane said that it was her first time seeing Adv Chowe but that they had spoken over the phone. She needed to clarify something and Adv Chowe could add to that before he is excused and then she could deal with other issues. In the letter which she had written to Adv Chowe, it was very clear that she had indicated to him that nobody had consulted her when the PPSA was terminating the services of her attorney who was appointed per the Public Finance Management, meaning from the PPSA panel of attorneys. She never refused to be represented hence her letter at paragraph 28 was very clear. She did not know why Ms Ebrahim was trying to put some unnecessary confusion to the Members and say that she had said “State Attorney”, even in the past. Now the PPSA had managed to do that. She had told them that when Seanego Inc was briefed several times that it was her attorney of choice who had briefed her counsel of choice. Seanego Inc had withdrawn or their services were actually terminated because of financial constraints or problems.
She had said she could choose from the panel of attorneys taking into consideration that she wanted the Office to continue complying with the PFMA. She did not want them to go outside of thePFMA. She had said Mr Chaane was the attorney. Now they went ahead and terminated Mr Chaane and Mr Chaane was appointed through the State Attorney. That arrangement, that was what they had decided – that Mr Chaane would be managed by the State Attorney but the State Attorney would not be involved. She never had a problem because the money was coming from the PPSA. Now the PPSA had decided to terminate Mr Chaane and the State Attorney wrote to Mr Chaane to terminate him. Now she did not have an attorney. When she had written that letter, she was still saying that the State Attorney had terminated Mr Chaane. In the letter she had written to Adv Chowe she said Mr Chaane or any other attorney from the list. Now PPSA had deviated by approaching the State Attorney because that was a deviation.
The State Attorney was not on the PPSA’s panel of attorneys. Now she was expecting them to have the decency of contacting her. In the past they wrote letters or emails to her and updated her that, “PP, now we are saying to this attorney, let them proceed. What is your view?” The Committee would not have been sitting here discussing this. The State Attorney had decided that they would terminate the attorney who was in hospital. She was saying to them in paragraph 28 which Ms Ebrahim was trying to conveniently confuse Members and portray it as if she had what she needed. Ms Ebrahim had also indicated in the previous meeting that the SG said that there was a conflict. Now Ms Ebrahim was trying to advise them that there was no conflict. The issue now was should Adv Chowe proceed. Can Adv Chowe continue to dispute and apply at court for the Chairperson’s recusal, can Adv Chowe or the State Attorney litigate against the State Attorney? This was because the Committee was represented by the State Attorney.
She was trying to make sure that things were done properly. If she had been listened to and not been accused of delaying, this would not have arisen. She had even proposed in the letter to Adv Chowe that, okay, if the State Attorney did not want to use the panel of attorneys and were deviating, possibly the CEO was deviating with the assistance of the Deputy PP (DPP). Also there was her private attorney, RMT Attorneys, possibly then the State Attorney could brief those attorneys and then they could proceed. The main thing which she thought Adv Chowe was going to indicate was how the legal profession operated. There was no letter which ever went to a person, even the Chairperson, which came directly from Adv Mpofu, Adv Hangwi Matlhape or Adv Bright Tshabalala. It was always the attorney of record who should be communicating information. She thought that appearing today before the Committee exactly one year since she was illegally suspended by the President. It was very clear that that suspension was biased, was conflicted, and had ulterior motives. It was nine months since the Western Cape High Court had said that she should return to the Office because her suspension was illegal. She had then lodged – and in fact, the President and the DA on same day had lodged an application – to the Constitutional Court as an urgent application. It was seven months now, and there was no outcome on that particular matter. For Adv Chowe’s information, there was a Constitutional Court judgment on her needing to be represented by a legal practitioner of her choice. Adv Chowe had spoken about contempt in a way. There was also an application which was still pending. Anyway, that being said, the application or the complaint had been lodged with the Ethics Committee, where she had requested the Chairperson to recuse himself voluntarily. She told the Chairperson today that she knew he wanted her to write to him by 13h00 but she did not have an attorney. Her attorneys had written a letter to him and indicated that in the legal process she was entitled to reasons why he was refusing to recuse himself.
She was faced with a situation now where there was this persecution from all spheres of government, because she was trying to exercise her rights here. She was facing the State, which was represented by the State Attorney in all the matters where they had litigated. The PPSA had a panel of attorneys. She thought that it was very unfair for the Chairperson to even expect her to respond by the time which he had allocated. She had sought legal opinion in her personal capacity, hence the letter which had been written to the Chairperson about giving reasons for the voluntary recusal of the Chairperson. Without her having legal representation, the Committee would be in direct contempt of court. There was a Constitutional Court judgment which was very clear on that. There were various other cases brought before the court about that, and even the recusal of the Chairperson on other facts and basis. It was now before the Supreme Court of Appeal (SCA). She knew that the Chairperson would want to rule that she had refused legal representation so he could proceed.
She never refused. Her letter was very clear. She needed an attorney. That was how South Africa operated and members of the public should know. She thought Ms Ebrahim was the legal advisor and should be fair to members of the public in that an attorney must brief counsel, In this particular issue, indeed, an attorney must brief counsel. She did not know why it was difficult for the State Attorney and PP to sit down and discuss this, find an amicable way to deal with this particular issue, and then her counsel would be properly briefed. But again, the issue that she must pay from her pocket on whatever it was. What was worse was that she had told Adv Chowe and he should have said it. It was just that she did not send him the letter from Acting PP, Adv Kholeka Gcaleka, about the R4 million, and she thought that the Chairperson had read it himself, that she was told the R4 million was for her travelling, for her accommodation, for everything.
She had gone to the State Attorney three times in Cape Town, hence she was now appearing virtually. That R4 million was no longer R4 million if that money was being used to anything which one was supposed to be doing. She thought that her submission was not declining any attorneys, and the letter was very clear – she had said “State Attorneys and/or” because the PP had decided to involve them now they had to appoint Mr Chaane. Why could they not appoint another attorney? The fact of the matter was that she still wanted Mr Chaane – if they went according to the panel of attorneys. If not, they could get another correspondent and she had suggested who from that panel it was, which was RMT Attorneys. The PPSA CEO and DPP, unfortunately, were the ones who were causing all this delay and this confusion and this mess, because everyone should be cordial with each other and sit down and see how they could speedily assist the process. She would just indicate that legal representation was a must for the Chairperson to proceed with this matter.
Mr Maneli said that his question was important on the point of consistency. The Committee had Adv Chowe appearing before it and had an opportunity to ask him questions on matters it was unclear about. The last point made by the PP was very important in this consistency he was talking about. The PP’s appearance at this enquiry was on the basis that there must be legal representation. Every time the Chairperson gave the opportunity to speak, it remained one-sided, because the Committee could not engage her without legal representation. When the Committee had this opportunity of her appearing before the Committee, Members should know what the status is and if they can engage her to get clarity on the matters she puts on the table because it helped the Committee to go forward. That is why he was raised his hand even before Adv Mkhwebane’s address. Now that it was clear that there was no representation and Adv Chowe was no longer representing due to ethical issues and so on, what would be the basis of proceeding as Adv Mkhwebane appears before this enquiry? There may be inconsistencies there and he did not want the Committee to be caught in that.
Ms Ebrahim replied that the initial correspondence from the SG was to the PPSA, not to the Committee, and it talked about there being a potential for a conflict of interest. Further, this matter was fast moving in that there were developments that then informed steps that got taken later on. One of those developments was that Mr Chaane had taken ill until further notice, and the other one being that the counsel fees had now increased. The use of the State Attorney was not done via procurement for purposes of the PFMA. There was no payment made to the State Attorney's Office which would result in a saving. This was something that SG mentioned in his letter to the PPSA when he raised this as a possibility because this scenario now allowed for cost savings, which would arrive at additional days in which the PP then could be represented. So efforts were being made to try to manage the funding. She would not speak further on conflict of interest. She had explained that the legal position was the test for reasonableness.
The Committee took a 15-minute break.
The Chairperson welcomed everyone back and said that as indicated he wanted to make a very concrete way forward proposition, borrowing from Mr Maneli’s terminology. Before he made those points, it might be incoherent here and there but he would try. He thought that it was important as part of the Committee’s context to indicate how they were operating. This would have been very much ventilated in the Committee’s meeting on Friday 2 June 2023. The Committee was operating within a tightly determined timeline, within the 22 days they had been assigned to complete their work. They had been given R4 million. There was no intention to extend those 22 days. There was no intention whatsoever to deplete the R4 million and ask for more money. They were very clear, that they needed to work within budget. It would be a bonus if it was less than that R4 million, but there was certainly no intention to go beyond it.
The Committee had worked in a very difficult way to get to that point in the first place and there was just no way that another avenue had to be opened for possible depletion of that R4 million. He wanted to start clearly with that in line with the Committee’s discussion on 2 June. The Committee had also been very firm and clear throughout this process about respecting the need for legal representation of the PP. The Committee had done everything to ensure that happened. Up to today, the PP had not been denied legal representation. Of course, the Committee had heard from the representative of the State Attorney, Adv Chowe, and a follow-up made by Dr Mulder on that that there had been objections and therefore the assistance / intervention of the State Attorney was declined. As indicated in the 7 June meeting, the Committee took numerous steps and made several interventions to assist the PP in securing legal representation.
On 7 June he had taken the Committee chronologically from the point when they were told, before there was a lack of funds, that the PP’s legal team had not been paid – something that was not the terrain of this enquiry. As Chairperson, he had gone out of his way to ensure that things started moving. He had taken the Committee through, step by step, all of the attempts and interventions that were made. Unfortunately, the Committee found itself in this position that when they took a step forward, and they thought they had made progress, then there was a setback of sorts. So it had become the DNA of this enquiry of late, since February / March, that the Committee would pick up a new hurdle, attend to this new hurdle, and another hurdle would be put in the way of this enquiry continuing. Unfortunately, this Committee did not have control over or direct the PPSA budget and the PP had been unable to move her chosen counsel on their fees.
He reminded the Committee that they had spoken on 7 June about the fact that now there was a new hurdle. Once there was an appointment of the SC together with the juniors, then the next new hurdle was the increase in counsel fee rates. The Committee was constrained by this ringfenced R4 million to complete the process and to do so in a manner that was fair. These setbacks had been caused by various factors. He was not going to spend time now apportioning blame on anyone, because some of the factors had clearly been due to circumstances beyond anyone's control. When somebody was sick and hospitalised, the Committee could not control those kinds of situations. These developments took place in the context of two things. The first was that this Committee was bound by the Constitution and the Rules of the Assembly to complete its task, which was the consideration of the motion before the Committee in a fair manner, within a reasonable timeframe, and without delay.
Secondly, as subject of this enquiry, the PP had been suspended and, as she said herself today, it had been a yearlong suspension since 9 June 2022. When the Committee had commenced this process, she was already suspended. The Committee thought that she too had a right to have this matter brought to finality. The Committee had to balance these important issues. If the Committee failed to do so it would leave her in a position of this matter hanging as a cloud over her, and it could never be said that such would be fair. The Committee was fortunate that they had made important progress during this 11 months. It was a lot of work that had been done and they were indebted to the work and the journey traversed. The PP had commenced with her oral testimony and she had covered what Adv Mpofu had said was the most important topics of CR17 and SARS. The Committee would commence with this testimony having the benefit of the PP’s written statement, which responded to all these charges and which was part of the audi she had been afforded since the hearings commenced.
In addition, the PP had been allowed to cross-examine witnesses and call her own witnesses. The purpose of oral testimony was to amplify this, and then allow the evidence leaders and Members to put questions to Adv Mkhwebane as the subject of the enquiry. It is at this point that the Committee seemed stuck and not able to move forward because of availability of counsel, amongst others. In addition, the PP had taken issue with his instructions to the evidence leaders to take the Committee through the records on Bosasa, CR17 and SARS matters. The PP also objected to his proposal to proceed to deal with the enquiry in part by concluding the evidence of Part A of the Statement before the Committee commenced with Part B.
In addition, she had raised concerns about funding that she would not be in a position to fund this process when the additional R4 million is depleted. He had made the point that that the Committee was not in the business of depleting that R4 million by even a cent because finances were certainly not in the Committee’s control. He had also given regard to this and he proposed this as the way the Committee must do things going forward. This might help to alleviate some of these issues and hopefully allow this Committee to fulfill its mandate.
Therefore, on the Committee’s way forward, he would direct that Members and evidence leaders put in writing all questions they have on any subject matter related to the charges in the motion. These questions would be collated preferably by topic and provided to the PP to respond. Should the PP wish to respond orally, she would be afforded the opportunity to attend hearings not later than a day after being provided the questions so that evidence leaders and Members could put these questions to her orally and, of course, any questions that may flow from her answers. In turn, her counsel may re-examine her as it were to the extent it may be necessary to clarify anything arising from these questions. If her preference was to respond in writing, he would allow time and space for her to compile her answers and submit them under oath. Of course, no re-examination would be necessary if it was in writing.
In the interim, while Members and evidence leaders conducted this important exercise of putting their questions, he would allow the PP to submit anything further in writing. This was in addition to the Part A and B statements given to the Committee which may have arisen since the Committee had paused the hearings on 31 March 2023. This, too, should be done under oath. Should the PP fail to answer, the Committee would have no choice but to make its findings based on the evidence before it – including the PP statements, Part A and B, which were done under oath. Thankfully, much of the evidence before the Committee was already in the form of sworn affidavits, which would assist the Committee in its task. Members would be afforded an opportunity to consider these answers, which may be oral or in writing. He would then allow the PP via her counsel an opportunity to make a closing statement orally or submit same in writing.
He would ensure that the Committee provide more than one possible date to accommodate the availability issues. As the Committee knew, in this process, they had always been hit with those kinds of issues. The evidence leaders would be expected to do a summation of evidence and then the laborious work and process of report writing would have to happen once Members had deliberated. All of these Committee’s deliberations, of course, as he had always indicated, would happen transparently in the public. The Committee was not doing anything in a smoke-filled dark room. Whatever recommendations the Committee made, everybody would be with them as they did that. The process of report drafting would then have to take place. This report in draft form would be submitted to Members for consideration and adoption. Changes as proposed after such a discussion and agreed to would be made, and any Member may submit a minority or contrary view to any findings which would be incorporated into the report. The report in draft form would be shared with the PP for comment. This would form her additional and last audi before a decision on the adoption of the report would be made. To the extent the Committee agreed, it would make changes to the draft report based on whatever they would have received as representations. The Committee would then table that report and the process would be led by the National Assembly table as the Committee’s job would have been done.
If Members were in agreement with this proposition as part of the way forward, he would issue directives to cater for these changes and set out a detailed timeline in which these steps would occur. This would be shared with everyone. Given the time, the cost considerations, the practical difficulties with availability, there did not seem to be any other option except what the Committee had, throughout this process, been patient about doing. As all of this was happening, there was going to be a concerted effort from this afternoon, based on the earlier discussion after listening to the State Attorney’s Office, to ensure that all issues ventilated this morning were fully attended to. He asked if Members wanted to comment on this.
Mr Nkosi agreed with the Chairperson fully. The only thing that he thought the Chairperson had to ensure throughout the process was that the process should and must be seen to be open, transparent, and reflective of an exercise of the Committee’s responsibilities in an open and an accessible way. There were elements in the Chairperson’s proposal that catered for that, but he thought that perhaps the Chairperson should give some consideration in nuancing them further so that the Committee was not seen to be doing this work outside of the public eye. Otherwise, he agreed with what the Chairperson was saying. He moved a motion that the Committee accept that as the way forward.
Ms V Siwela (ANC) seconded the motion that the Committee accept the Chairperson’s proposal so that it was able to conclude this process.
Dr M Gondwe (DA) supported the Chairperson’s proposal on the way forward and she looked forward to the Committee concluding the work it had started.
Mr Maneli said that he agreed with the Chairperson’s proposal on the way forward. He understood the points covered by Mr Nkosi that of course at all times it had to be seen to be fair for both sides. Both for the PP who appeared before this Committee to answer allegations levelled against her as well as for the Committee to be able to do its work and come to a sense of finality. Now, he was raising another point because he still needed to know what the status would be in the absence of legal representation for the PP. This was so that, again, the Committee did not get accused that it did not look at that matter and that had continued to engage with the PP in the absence of representation. First option was given to the PP to follow the other route. In the failure of that, the Chairperson was indicating how the Committee should be able to still fulfill its task and still afford the PP an opportunity to answer.
Mr K Mileham (DA) said that while this was not an ideal situation and it was problematic that the Committee was unable to engage the testimony of Adv Mkhwebane directly or orally, he thought that given the challenges the Committee had faced and the hurdles they had to overcome in getting this matter concluded, that the Chairperson’s proposal was very much the only way forward that was going to actually get the Committee out of the quagmire they found themselves in. So he wanted to support the idea that the Committee submit the questions in writing, and that they then allow Adv Mkhwebane to respond to those questions, and they deal with it in that manner. He could not see this matter being resolved if the Committee continued to delay and go around in circles discussing irrelevant or sideshow issues and not the actual evidence before the Committee.
Ms Dlakude agreed that the Committee supported the Chairperson’s detailed proposal so that this Committee was able to move forward. One would remember that the Committee had discussed it at length on Friday the previous week and also on Tuesday. The Committee had rehashed what they had discussed on Friday the previous week that the Committee needed to conclude the work that evidence had already been led on. Submitting those questions was the best way to do things as this Committee.
The Chairperson said that with the last Member having contributed, he would allow the PP an opportunity to respond.
Public Protector’s Response
Adv Mkhwebane replied that indeed she was not a Member; the Chairperson had made that very clear and she had heard it. She thanked the Chairperson for giving her the opportunity as she wanted to clarify something with him. She thought that, going forward, she would request that Ms Ebrahim should be very honest when advising Members of the Committee because Ms Ebrahim should have raised the issue of what the SG had said about the conflict from the beginning instead of allowing this matter to be discussed. She was willing and able to engage with the PPSA to allow her to have legal representation of her choice so that when she responded to those questions she should be assisted by legal representation because she would not answer any question without her legal representation. She hoped that process would move with speed. She agreed with the Chairperson that saving costs was exactly what she wanted to do. It was strange and she wondered if the State Attorney, for whatever they had done, they would do it for free because what she knew was that the State Attorney also charged.
She wondered why the PPSA had decided to brief State Attorney instead of briefing Mr Chaane directly. She thought that those were the issues. However, what was critical was that, indeed, whatever the Chairperson had mentioned now about the process which he said was going to take place was not provided for in the directives, and it was an unlawful process, which all Members were agreeing to. Fortunately, again, it was exactly what the late Ms Tina Joemat-Pettersson had said but that would be revealed; this was what the Chairperson would want to do to circumvent the process. She would hear from the Chairperson as soon as the PPSA had made sure that she had legal representation, because unfortunately the PPSA was the cause of all this mess with its letter of 1 March 2023 and now the R4 million, terminating Mr Chaane, and everything. She would proceed with the process.
Finally, by the Chairperson saying this, it meant that he was refusing to voluntarily recuse himself because she thought that that was very important. Then, the second issue was this constructive contempt of court about legal representation, as the matter was now before the SCA, but now there was another matter of alleged extortion and corruption and the Chairperson’s recusal. She just needed to hear that information so that she could put it on record. Yes, she rejected the Chairperson’s proposal as presented. It was in violation of the Constitution; hence, she had the issue of legal representation now. So, she hoped that that issue was catered for.
The Chairperson said that he had indicated that and he would still put that to confirmation. All Members that have spoken were in agreement with the proposal for the way forward. He had indicated that once that was in place, he would issue the amended directives informed by that. So the point that Adv Mkhwebane was raising about directives had already been catered for. On the issue of legal representation, he had indicated that that work was not stopping. It would continue – perhaps even with much higher efforts and speed than what the Committee had done so far. Legal representation was a matter that the Committee was seized with for it to reach finality. The Committee had been assisting with the issue of legal representation and they were not going to tire on that – they were going to continue doing that. Everything else in relation to that would be attended to. He had made a point that, if everybody agreed to this, the directives would be issued to conform with what the Committee discussed and agreed to. He was still waiting. By 13h00 today, which was 56 minutes left, he would welcome an application for his recusal and also respond to that on Monday 12 June. He would attend to that when that reached his space. There should be no issues about that. Just to conclude, he asked if there was any Member who raised an objection about this proposed way forward because everybody else who had spoken was in support of the amendments that had to be made.
Mr B Herron (GOOD) said that he was raising an objection since the Chairperson had read off some instructions. He just wanted to confirm that the Committee would get those in writing as well so that Members were clear about them.
The Chairperson said that, in fact, it was not only for Members, but included the PP. The Secretariat was going to send out what he was running through, in detail – including the timelines, and everything else. So Mr Herron was in order, and that would be done. There were no objections apart from that request?
Adv Mkhwebane said that there was her objection. She thought that she had indicated that she was rejecting the proposal. She hoped that anything which would be sent to her would be sent as soon as it was known who her attorney was – because if it were sent to her, she would not be able to deal with it – especially the attorney to represent her in this process. Then, secondly, was the issue of the Chairperson’s recusal, which she had kindly requested. She had sent the letter through RMT Attorneys that she would not be making a recusal application because she did not have attorneys, but she had put it there in writing. Hence, she had requested that the Chairperson indicate and give reasons why he was not recusing himself. That was all she wanted to put on record. She was rejecting the proposal and she did not agree with it.
The Chairperson said that the letter the Committee had received today, just 10 or so minutes before 10h00, would be responded to as a letter. Adv Mkhwebane seemed then to be saying that he must expect a recusal application by 13h00.
Adv Mkhwebane replied that she had no lawyer.
The Chairperson said that Adv Mkhwebane did not have to respond. He was just saying that the Committee would respond to that letter received at 09h50. This letter he had not read. He had been told that there was a letter, and he would attend to it. Secondly, what he had read out would be sent out to Members and to the PP as the subject of this enquiry and somebody who accounted to the National Assembly in terms of her work. He had already attended to the Committee continuing to address the issue of legal support and so on. Otherwise, the points that the PP had made were noted. With that, if there were no other issues, there was a clarity sought by the evidence leaders.
Adv Nazreen Bawa, SC, Evidence Leader, said that she did not want to delay Members, but she wanted to raise a possible permutation. The evidence leaders had not had a long time to apply their minds to this approach, it having come up after the 7 June meeting. From the evidence leaders’ side, Members will appreciate that questions in writing are a lot more labour intensive because it did not have the natural flow of an oral question where one had a follow up. It had to be formulated a lot more precisely. Not wanting to be the cause of further delays, Members will also be aware that the evidence leaders had been a lot more prepared on the Part A statement than the Part B statement, because oral evidence had been led on the Part A statement. Mindful of that, the evidence leaders would want to consider that instead of giving all the questions at once, they give Part A questions with a deadline and Part B questions with a deadline.
This was especially since the Chairperson had invited the PP to make further submissions in respect of Part B which Adv Mkhwebane had not amplified in oral evidence. That would mean that that might facilitate the process. She had made this suggestion because it had a material bearing on the evidence leaders being able to meet any deadlines that were put into the process. There should be a filtering mechanism as obviously there was going to be some repetition of questions from the evidence leaders and from Members. There had to be some consideration to that so the PP does not face repetitive questions that would then also result in wastage of resources. The evidence leaders and, most importantly, Members must have that in mind when formulating questions so the Secretariat could manage that appropriately. For the rest, the evidence leaders would abide by whatever the Committee decided.
The Chairperson said that Adv Bawa had made useful and enriching comments to the implementation, which were aimed at meeting the deadlines by splitting the questions into Parts A and B and ensuring that there is no repetition. But also, to be much smarter and to understand that this was not an oral interaction – it was written, so the nature of questions was therefore different. He took note of Adv Bawa’s comments and did not think that there should be a problem with it.
Adv Bawa said that, with leave from the Committee, the evidence leaders had never regarded themselves as filling an adversarial role. Should the PP require assistance in any of this, from finding information or dealing with where a question originates from in the record, be it through the evidence leaders or via the Secretariat, probably via the Secretariat as there was a record, the evidence leaders would avail themselves for that assistance as well.
The Chairperson took Adv Bawa’s point. With that, he thanked everyone for the additional points for the Committee to take into account. The Committee would therefore hear from the Chairperson on the detailed writing that would be sent. It would make it much quicker for everybody to prepare for that because it would stipulate by when certain items must happen. They would work to ensure that everyone received the necessary information.
The meeting was adjourned.
Subsequent to this meeting, the following questions were submitted to Adv Mkhwebane https://pmg.org.za/page/Written%20Questions%20to%20Public%20Protector
Dyantyi, Mr QR
Denner, Ms H
Dlakude, Ms DE
Gondwe, Dr M
Herron, Mr BN
Mahlaule, Mr MG
Malema, Mr J
Mananiso, Ms JS
Maneli, Mr BM
Mgweba, Ms T
Mileham, Mr K
Nkosi, Mr BS
Nqola, Mr X
Seabi, Mr M A
Siwela, Ms VS
Skosana, Mr GJ
Sukers, Ms ME
Tlhape, Dr ME
Tseke, Ms GK
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