Mkhwebane’s legal costs have spiralled out of control, but she is still entitled to a defence

It would be desirable for a compromise to be reached to make limited funding available to Busisiwe Mkhwebane to allow her to pay a much smaller and cheaper legal team to represent her.

Suspended Public Protector Busisiwe Mkhwebane and her legal representative, Dali Mpofu, are not known for their fidelity to the facts or the law (see for example, here, here and here).

It is therefore not surprising that they have claimed over the past week that the refusal by the Public Protector’s office to continue paying her escalating legal costs was part of a campaign to vilify and humiliate Mkhwebane, and that continuing with the impeachment inquiry in the absence of her legal representatives would be illegal, unlawful and unethical and an infringement of Mkhwebane’s rights.

In reality, the facts and the law do not seem to back up these claims – although an argument could be made that any Chapter 9 public office bearer facing an impeachment inquiry should be entitled to the payment of reasonable legal expenses incurred during such an inquiry, as this was necessary to ensure the fairness of the process.

The first obvious point to make is that the Constitutional Court did not, as suggested, rule that Mkhwebane was entitled to legal representation of her choice at state expense. The Public Protector did not raise the matter of who should carry the cost of such legal representation before either the high court or the Constitutional Court and neither court considered this question.

In Speaker of the National Assembly v Public Protector and Others; Democratic Alliance v Public Protector and Others the Constitutional Court did invalidate the National Assembly rule that allowed for legal representation before the impeachment committee “provided that the legal practitioner or other expert may not participate in the committee”. The court amended the rule to read that the section 194 committee “must afford the holder of a public office the right to be heard in his or her defence and to be assisted by a legal practitioner or other expert of his or her choice”.

The court pointed out that in our law “there is no free-standing or absolute right to legal representation in foraother than courts of law”, but held that it was irrational for the rules of the National Assembly to allow full legal representation for a president appearing before an impeachment committee in terms of section 89, but not for Chapter 9 office bearers appearing before an impeachment committee in terms of section 194.

This conclusion was bolstered, according to the court, by the fact that judges “are also entitled to full legal representation during a hearing held by the Judicial Conduct Tribunal to determine whether a judge should be removed [from office] due to allegations of incapacity, gross incompetence or gross misconduct”. (The relevance of this point will be addressed below.)

However, this is not the end of the matter as the court also pointed out that in terms of rule 129AD(2), the committee must ensure that the inquiry is conducted in a reasonable and procedurally fair manner and that a “reasonable and fair procedure requires full legal representation for the public office bearer facing impeachment”.

An argument could therefore be made that the state has an ethical duty to fund the reasonable cost for the legal representation of any Chapter 9 office bearer appearing before an impeachment committee to ensure that the process is reasonable and fair.

But this is not the contention advanced by Mkhwebane and her legal team. Instead, they seem to be arguing that the state has an unlimited obligation to fund any legal cost incurred by the office bearer, no matter how exorbitant.

It is not in dispute that Mkhwebane’s legal costs have spiralled out of control. Last Friday, acting Public Protector Kholeka Gcaleka revealed in a letter to the committee that the total expenditure for the legal fees in respect of the litigation on the impeachment process, as well as the proceedings before the section 194 inquiry for the 2022/23 financial year, came to about R26.2-million.

It is unclear how much of this was spent on litigation aimed at stopping the impeachment process, and what percentage was spent on the committee proceedings, but it was previously estimated that Mkhwebane’s five-person legal team was costing about R130,000 per day. The Public Protector’s office earlier also suggested that there were “discrepancies” in the invoices presented to it by Mkhwebane’s legal team, raising further questions about the exorbitant cost incurred.

Ideally, Mkhwebane and her lawyers should have taken steps to avoid the current impasse by curtailing the legal costs to ensure the funds made available by the Public Protector’s office lasted until the conclusion of the process.

The failure to do so has exposed Mkhwebane to a charge that she is the author of her own misfortune and cannot complain about the fact that her legal representatives withdrew because she has failed to manage the resources provided to her to conduct her defence.

That said, the question is whether a solution to the problem (assuming Mkhwebane is keen to secure further legal representation to allow her to face cross-examination while legally represented) may be for her to apply to Legal Aid South Africa for limited funding. Support for this view can, at first blush, be found in the various high court and Constitutional Court judgments dealing with the funding of legal representation for Marikana miners before the Marikana Commission of Inquiry.

Recall that the high court in Magidiwana & Another v President of the Republic of South Africa & Othersordered Legal Aid South Africa to take steps to provide legal funding to Marikana miners to allow them to participate in the Marikana Commission of Inquiry. While the court held that the right to legal representation at commissions was not an absolute one, it said that a refusal to fund could be unlawful, but this would depend on the specific context.

The vulnerability of the applicants as participants in the proceedings of the commission, and the need for each party to be given a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-a-vis his or her opponent (equality of arms principle), were decisive factors in the court’s decision.

But as Mkhwebane is not indigent, and as the Public Protector’s office has already spent millions of rands on her legal fees, it could hardly be argued that she is a vulnerable person who requires Legal Aid funding.

Another problem is that the high court qualified its order by making it clear that the Marikana miners were not entitled to unlimited funding, and that the court could not prescribe to Legal Aid how much funding to provide. It merely suggested that it would be “commendable” if Legal Aid funded two counsel (one senior junior and a junior counsel) and a firm of attorneys.

The court emphasised that “the principle of equality arms does not mean equal representation on the same scale as the State parties”. Legal Aid could therefore hardly be expected to fund Mkhwebane’s legal cost at the level it has been funded to up to now.

The two Constitutional Court judgments on the matter also cast doubt on whether the judgment would be of assistance to Mkhwebane as they make it clear that the high court decision was less far-reaching than it looked.

First, in dismissing an appeal of an urgent application, the Constitutional Court in Magidiwana and Others v President of the Republic of South Africa and Others made it clear that while “unfairness may arise when adequate legal representation is not afforded”, this “does not mean that courts have the power to order the executive branch of government on how to deploy state resources”.

Second, in dismissing an appeal of the high court judgment quoted above, the Constitutional Court in Legal Aid South Africa v Magidiwana and Others made it clear that the high court judgment did not impose any general obligation on Legal Aid to fund legal representation, and that Legal Aid retained its discretion to decide on a case-by-case basis whether it would fund such legal representation, concluding that:

The decision of the High Court will have no practical effect on any of the parties – in particular on Legal Aid and its future decisions in respect of funding. If in future parties that appear before a similar commission require legal representation at state expense, they will have to apply to Legal Aid which will consider the application in terms of the relevant law and regulations. If the application does not meet the requirements for funding, Legal Aid will be free to decline it.

Assuming that the ship has sailed and that Mkhwebane has only herself to blame for running out of funds to pay her legal team, should the committee continue with its work? It would be desirable for a compromise to be reached to make limited funding available to Mkhwebane to allow her to pay a much smaller and cheaper legal team to represent her.

If she refuses to accept this and uses the matter of legal funding to try to avoid facing cross-examination, the committee would have to summons her to force her to appear.

This would be in line with the position of judges facing a Judicial Conduct Tribunal as provided for in section 28(2) of the Judicial Service Commission Act.

This section states that a judge facing such a tribunal “is entitled to attend the hearing and to be assisted by a legal representative, but the Tribunal may begin or continue a hearing, in whole or in part, in the absence of the respondent, or the respondent’s legal representative, or both of them, if the Tribunal is satisfied that the respondent was properly informed of the hearing”.

As Mkhwebane has often argued that she should be treated in the same manner in which judges are treated, she should have no objection to this – unless, of course, she is using the funding issue to avoid what might turn into her catastrophic cross-examination.

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