At the commencement of the impeachment inquiry on Wednesday, Parliament’s legal advisor, Fatima Ibrahim, informed members that Thuli Madonsela had written to the committee after being summonsed to appear by Busisiswe Mkhwebane’s legal team.

In her response, Madonsela set out that after initially meeting her successor in 2016 to “hand over”, Mkhwebane “suddenly insisted that I was no longer in office and as such it was inappropriate to meet and augment my briefing with her.”

In a hard-hitting criticism of Mkhwebane, Madonsela told the committee that she first would need more clarity on the questions to be asked and also required the PPSA to pay for her legal costs should she be summonsed.

Mkhwebane had requested Madonsela to appear to give evidence on various matters including the vetting of staff members, “donor funding”, the outsourcing of investigations to law firms as well as consequence management and the impact the Nkandla judgment had on costs.

Mkhwebane sought reasons also from Madonsela as to why she had not completed the CIEX or the Vrede reports before her term of office ended.

Both these reports and their subsequent setting aside by the courts form part of the basis for this parliamentary inquiry into misconduct.

Suspended Public Protector Busisiwe Mkhwebane during the inquiry into her fitness to hold office at Parliament on 2 November, 2022 in Cape Town, South Africa. Busisiwe Mkhwebane was suspended by President Cyril Ramaphosa with immediate office on June 9th. (Photo: Gallo Images / Brenton Geach)

Madonsela said she would not be able to assist as “I see no rational connection of the majority of questions and the Section 194 inquiry which stems from court judgments up to the constitutional court regarding Advocate Mkhwebne’s integrity and her understanding of the PP’s constitutional mandate”.

The information the committee sought, added Madonsela, was with the PP as an institution and not with her personally.

“Having left more than six years ago it is the PP that is best suited to respond to questions regarding its relationship with organs of the state in line with its constitutional position as an independent constitutional institution set up to hold other organs of the state accountable including the State Security Agency”.

Banned by Busi

She said she would have been in a position to help a week after leaving office “if efforts to work with the PP team members to a assure quality set of records were not rebuffed”.

Mkhwebane “flatly forbade any contact between myself and the teams I worked with when I had requested her permission to do so”. Her successor would have had an opportunity to ask institutional questions “with matters still fresh in my mind”.

The suspended PP, said Madonsela, had refused to meet her the week following her leaving office “despite the two of us having agreed during our handover meeting at my office that we would continue meeting and briefing the following week.

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“The following week she suddenly insisted that as I was no longer in office it was inappropriate to meet to augment my briefing with her,” said Madonsela.

This, she added, was despite being in the public domain after she had been “ambushed” by former president Jacob Zuma with regard to “action on State Capture”.

She recommended that the committee or Mkhwebane’s legal team might find the information on administration, institutional land matters of staff members at the PPSA’s offices.

No one can override court decisions

With regard to the investigation of “related information,” Madonsela suggested the committee rely on the observations and findings made by the courts “such as in the Sarb” matter.

This had included determinations by the apex court, the Constitutional Court, whose decision was final, she said

“In this regard, it must be borne in mind that nothing I or anyone can say can override court decisions.

“An attempt to do so would have the same results as when Parliament tried to review the Nkandla matter reported in the Secure in Comfort”.

In the matter of the EFF vs the Speaker, the DA vs the Speaker the Constitutional Court had found that the National Assembly second-guessing or “stepping into the shoes of the PP”, replacing her findings with its own was “a violation of the rule of law”.

Mkhwebane’s legal team not paid

At the start of proceedings, the committee was informed by Ibrahim that Mkhwebane’s legal team, led by advocate Dali Mpofu, who was paid R13-million by the suspended PP in the past, has not yet been paid.

Ebrahim said that the committee had been copied into correspondence between the PPSA and Seanego Attorneys about a process that was underway to verify invoices.

The bulk of invoices by Mkhwebane’s team was submitted in December.

“Our advice was that the committee not get involved in the payment of service providers. If the PP does not have her legal team, we thought it fit that we alert the CEO to determine what is causing the delay.”

The hearing continues. DM