Mkhwebane’s right to having lawyers ‘doesn’t mean we are liable to pay legal fees’ – PP’s office

The Public Protector’s office has lamented the “significant” money spent on advocate Busisiwe Mkhwebane’s legal fees for her parliamentary impeachment inquiry.

On Monday, Mkhwebane raised the issue of her legal team’s outstanding fees to the Section 194 Committee.

She told the committee that she couldn’t instruct her legal team because they hadn’t been fully paid.

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While the Public Protector’s office indicated that it was scrutinising the invoices sent by her attorneys for “discrepancies”, Mkhwebane questioned why the chapter 9 institution had not picked this up within a week to avoid delaying the inquiry.

“The issue is my legal team having to spend the December holidays without being paid. Unfortunately in South Africa, we have the curse of the middle class. Schools are opening and they have not been paid. People have bonds to pay, people have cars to pay,” she told the committee.

“I don’t know whether that is done to punish me further because other legal teams have been paid.”

‘Almost twice the amount’

But on Tuesday, the office – which pays for Mkhwebane’s travel costs, accommodation and security – decided to address the suggestion that it deliberately delayed paying her legal team.

“The insinuation by advocate Mkhwebane that the PPSA [Public Protector South Africa] is in default of its funding obligations, and specifically that the PPSA is in such default with the deliberate intent to frustrate advocate Mkhwebane’s right to legal representation and the Section 194 process is untrue and rejected,” acting spokesperson Ndili Msoki said in a statement.

“Advocate Mkhwebane’s right to legal representation in the Section 194 proceedings does not imply that the PPSA should be liable for the funding of such representation.”

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According to the institution, Mkhwebane’s legal team charges more than the office generally pays for legal services.

The office also pointed out that the suspended Public Protector’s legal bills for her impeachment inquiry and related court matters was more than the initial amount given.

“Advocate Mkhwebane and her legal team would be well aware that the legal costs that the PPSA is expected to incur, are already almost twice the amount that they originally provided as an estimate, and have not yet been revised as required.”

Last week, acting Public Protector Kholeka Gcaleka informed Parliament’s Portfolio Committee on Justice and Correctional Services that the total cost of the impeachment inquiry could exceed R15 million.

Invoices

Verification process

The Public Protector’s office had informed the Section 194 Committee, in a letter, that the payment delays was due to discrepancies in some of the invoices sent by Mkhwebane’s lawyers, Seanego Attorneys.

The institution, therefore, was doing a verification process before they would be in a position to make payment to the firm.

It was previously revealed that the office was currently verifying invoices for July to September 2022 amounting to R6.4 million, while four other invoices – which could exceed R5 million – received in December have not yet been processed.

‘Special relationship’

Msoki explained that some of the invoices were disputed and being checked because they did not conform with the office’s tariff of fees for the services rendered.

She also said Seanego Attorneys was allowed to use a different billing method, given the firm’s “long-standing, special relationship” with Mkhwebane.

“Despite the impasse between the PPSA and advocate Mkhwebane’s legal team, the PPSA eventually resolved to approve and process payment of the earlier outstanding invoices in relation to the high court matters as well, to inter alia, avoid the risk of derailing the enquiry process,” the statements further reads.

As of last week, the office has paid more than 70% of the outstanding fees as per invoices that were submitted on 13 December.

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Parliament’s legal advisor, Fatima Ebrahim, told the Section 194 Committee on Monday that 33% – approximately R2.1 million – had been paid on 9 February, while the rest was paid the following day, bringing it up to 74%.

Meanwhile, the office added that it would only pay the fees in question “on receipt of a valid verified invoice”.

“Advocate Mkhwebane’s legal team was informed that owing to the large amounts of public funds involved, the historical challenges, and the risk surrounding conformity with the PPSA fee structures and fiscal governance requirements, the PPSA was taking great care to meticulously verify the tariffs and fees.

“The verification process was further hampered by capacity constraints, which are historical in PPSA and well-known to advocate Mkhwebane.”

Read the full statement below: