‘R4m not enough for Busi’s hearing’: Legal expert says Mkhwebane may need more funds

While the extra R4 million allocated to embattled Public Protector (PP) advocate Busisiwe Mkhwebane by Public Protector South Africa (PPSA) may seem sufficient to argue her hearing resuming on Monday, a legal expert has warned more funds could be required.

Chair of the parliamentary committee for section 194, Qubudile Dyantyi, said Mkhwebane will be the last witness to appear before the committee.

“The additional R4 million allocation, is meant to help conclude the process.

“We have budgeted 22 days for the use of the allocated R4 million and there will be no more money needed,” he said.

Mkhwebane gets extra funds

Compelled by the ruling of the Constitutional Court to make available additional funds for Mkhwebane to pay her defence team in hearings aimed at determining her fitness to hold office, the PPSA has announced granting the R4 million – an amount she described as “insufficient”.

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The hearing had to be postponed after Mkhwebane’s lawyers could no longer defend her due to non-payment of legal fees, with the PP having approached the ConCourt to force PPSA to make additional funds available.

Mkhwebane has argued that non-availability of funds to adequately defend herself before the committee, amounted to “a malicious breach of the said binding court order” and “contempt of court”.

R4 million not enough?

Commenting on the allocation of extra funds for Mkhwebane’s defence, University of Pretoria senior law lecturer Dr Llewelyn Curlewis cautioned that the R4 million allocation could run dry.

While the granting of extra funds towards legal costs – in compliance with the Constitutional Court ruling – was a move to be welcome, Curlewis said a lingering question was: “What happens when the R4 million contribution towards legal costs, runs out?

“There is absolutely no guarantee that the R4 million will be sufficient to see the matter in and out.

“While one would assume that the amount is probably more than sufficient, there are so many other possibilities in the future, which include possible interlocutory applications, which could still be employed.

“As a result, one can never definitely determine the final amount required or involved in such matters.”

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On concerns about the financial implications of the legal defence funds allocated to Mkhwebane, on PPSA operations, which included investigations and taking up public matters, Curlewis said investigations cannot be stalled or be possibly suspended, pending funding.

“Either way, it cannot be deemed to be in the interest of the public.”

‘Prejudicial and unfair’

Accountability Now executive director, advocate Paul Hoffman SC has maintained that it was “prejudicial and unfair to proceed” while the public protector is not represented.

“It is implied that the costs be reasonable,” he said. “The extra amount allocated is more than reasonable – and would, accordingly be unreasonable for the public protector to require more.”

Hoffman and Curlewis have earlier raised concern about Mkhwebane “prolonging committee proceedings unduly, with the end of her term of office in October in mind”.

The R4 million the PPSA agreed to pay Mkhwebane’s legal team, was drawn from the 2021-2022 financial year surplus funds – after the institution obtained National Treasury approval. National Assembly Speaker Nosiviwe Mapisa-Nqakula has previously said she did not think it was required to fund Mkhwebane’s defence, maintaining that the Constitutional Court’s earlier ruling did not extend to payment for the PP’s legal representation.

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