Public Protector South Africa addresses its position on litigation involving Adv. Mkhwebane
The leadership of the Public Protector South Africa (PPSA) has, in the best interests of the institution and the public it serves, taken a decision to withdraw the institution’s participation in all pending litigation instituted by Adv. Busisiwe Mkhwebane in the name of the institution.
However, due care has been taken not to impede or infringe Adv. Mkhwebane’s rights or preparations in line with the critical safeguards to the impeachment process that have been highlighted by the Constitutional Court and the Western Cape High Court (WCHC).
Within this context, the provision of funding for Adv. Mkhwebane's legal matters is as follows:
- The PPSA will not fund Adv. Mkhwebane’s appeal against the recent decision of the WCHC, where she sought to obtain an urgent interdict to prevent her suspension (Part A); the rescission application pending before the Constitutional Court; Part B of the application in the WCHC; and the defamation of character lawsuit, which is a private matter against the Democratic Alliance.
- The PPSA will fund Adv. Mkhwebane's challenge of her suspension; her defence during the impeachment proceedings; and the perjury criminal case, within the PPSA’s fiscal governance framework, considering that the Public Finance Management Act (PFMA) and Treasury Regulations require the PPSA Accounting Officer to ensure sufficient funding for any expenditure that the institution is required to cover and that any estimated legal costs are reasonable and budgeted for.
Section 2A(7) of the Public Protector Act 23 of 1994 provides that, if the Public Protector is, for any reason, unable to perform her functions, the Deputy Public Protector shall perform such functions. This provision confers all powers and functions of the Public Protector upon the Acting Public Protector, including the responsibility to strategically direct litigation in the name of the PPSA within the best interests of the institution to fulfil its constitutional mandate and within the parameters of the law.
In this regard, Adv. Mkhwebane’s legal representatives should have obtained a power of attorney from the Acting Public Protector prior to filing an amended notice of motion in respect of Part B of the application before the WCHC on 17 June 2022 as well as a notice of application for leave to appeal the WCHC decision on Part A on 04 July 2022.
The legal representatives’ last authority to act on behalf of the PPSA was signed as far back as 2019 by the then CEO to challenge the Parliamentary Rules for the removal of office bearers of Institutions Supporting Constitutional Democracy.
The escalation of the matters beyond the scope of the instructions that they were originally appointed for, fiscal responsibilities in ensuing financial years as well as the litigation strategy in the name of the PPSA to pursue and enforce the rights and interests of Adv. Mkhwebane, affected both the liability and legal standing of the Acting Public Protector and the PPSA in these matters.
The Acting Public Protector has been in regular contact with Adv. Mkhwebane in relation to her access to legal services, support and information affected by her suspension. She communicated these latest decisions to Adv. Mkhwebane during a courtesy call on 04 July 2022. In a separate engagement on the same day, PPSA CEO relayed the same message to Adv. Mkhwebane’s legal representatives.
The Acting Public Protector reaffirms the PPSA’s mandate to investigate all malfeasance in state affairs without any fear, favour or prejudice and will prioritise the best interests of the public, thereby living up to the institution’s constitutional purpose of strengthening constitutional democracy.
The PPSA will make no further comments on this matter.