Busisiwe Mkhwebane’s reliance on advice from Paul Ngobeni had nothing to do with her impeachment, the controversial legal adviser has told the Section 194 Inquiry.

Responding to written questions – which he labelled as “propaganda”, “foolish” and “confusing” – Ngobeni navigated his way tetchily through the list drawn up by inquiry evidence leaders, advocates Nazreen Bawa and Ncumisa Mayosi.

After qualifying to practise in the US in the late 80s, Ngobeni moved back to South Africa under a cloud in 2007 and was appointed deputy registrar of legal services at the University of Cape Town.

The 62-year-old parted ways with the institution in 2009 after “disagreements”, whereupon he immediately embarked on a career advising politicians and officials in the ANC.

The Lydenberg-born (now Mashishing in Mpumalanga) Ngobeni was an instrumental cog in Jacob Zuma’s legal strategy with regard to his corruption charges over the years.

He was also a vocal champion of now suspended Judge President of the Western Cape John Hlophe and was appointed legal adviser to the then minister of defence, Lindiwe Sisulu.

Consulting, not opining

Evidence has been provided to the historic impeachment inquiry that the suspended PP had relied on Ngobeni’s services as well as those of his media side-kick, Kim Heller, as “legal and communications consultants” on a variety of high-profile political investigations.

The crack Ngobeni has slipped through in answering the copious questions from inquiry evidence leaders is that Mkhwebane theoretically did not employ him or his company directly.

This was done through her attorneys, Seanego, who subcontracted Ngobeni and Heller.

Read more in Daily Maverick: Bell Pottinger-like propaganda campaign and changes to Constitution on land expropriation part of Mkhwebane’s mission, hearing told

Ultimately, Ngobeni said, the details of his contract with Seanego Attorneys, “a private law firm”, were “none of your business”. 

What evidence leaders were seeking was “irrelevant” and calling for the disclosure of “information protected by attorney-client privilege”, he added numerous times.

However, he later admitted that he had “no reason to doubt that the amounts were duly paid”.

At a remove

Ngobeni’s responses reveal a wily and irritable man who quickly spotted the legal potholes on the road to plausible deniability in this instance.

It is indeed Mkhwebane who must answer these questions, something she has not yet chosen to do. 

Read more in Daily Maverick: Unanswered questions, Part Three: Seeking clarity on role of ‘legal adviser’ Paul Ngobeni in Mkhwebane’s high-profile cases

Ngobeni objected strongly to several queries by the committee’s lawyers, and when asked about a specific invoice for services rendered to the PP he gaslit like a pro.

“I have no records indicating that an exact amount of R45,625 was paid by Seanego Inc for the services rendered in July 2018 as reflected on Annexure A [an invoice]”.

Of course not, it would have been Seanego who would have invoiced Mkhwebane and not Ngobeni’s “consultancy” itself.

Ngobeni also vehemently denied that he was barred from acting as a legal adviser in South Africa because of charges of forgery and larceny in the US. In May 2011 the Supreme Court of the United States issued an order disbarring him in that court.

In 2005, the Connecticut Office of the Chief Disciplinary Counsel filed an application for the interim suspension of Ngobeni as he “posed a substantial threat of irreparable harm to his clients or to prospective clients”.

Ngobeni faced 17 counts of alleged misconduct involving 16 clients and was accused of taking fees “without providing services, was incompetent, lacked diligence, failed to communicate with clients, engaged in misrepresentation and deceit, failed to explain an overdraft in his clients’ funds account, failed to safeguard clients’ funds, and failed to respond to requests for information from the Connecticut Bar discipline authorities”.

Read more in Daily Maverick: Uncovered — Paul Ngobeni, the fugitive mind behind Busisiwe Mkhwebane’s court defeats

That former Public Protector Thuli Madonsela had found him to be a “fugitive from justice” after a complaint lodged during his tenure with Sisulu, was “incorrect in reasoning”, he said.

“I was at all times a person with recognised foreign legal qualifications who was eligible to practise law in South Africa by virtue of a ministerial exemption granted in terms of the Recognition of Foreign Legal Qualifications and Practice Act 114 of 1993,” he said.

Asked whether a “full” exemption entitled him to provide legal consultation services automatically “and without the need to be admitted in a South African Court of law, either an attorney; or an advocate”, he responded the question was “irrelevant and nonsensical”, and that “exemption and its legal effect are matters of legal interpretation”.

Legal semantics

He charged that questions about the nature of his work and whether he was qualified to offer advice “reflects your confusion about the nature of legal and communication consultant services”.

Ngobeni also schooled the evidence leaders about the PP’s reports being taken on review, saying “you know very well that, as a matter of law, I had no legal standing (locus standi) to review the Public Protector’s report”.

Asked about the invoice to Seanego attorneys for work done and how it had “come into existence”, Ngobeni said it was “a very confusing and foolish question given that I did not submit the Annexure A [the invoice], how am I supposed to know how ‘it came into existence’?”.

About whether his appointment had been “pursuant to a tender process” he shot back: “Your question is irrelevant and nonsensical. To perform services for Seanego and its clients I do not need to go through a tender process.

“Please read my introductory explanation carefully to understand the exact nature of the Legal and Communication Consultant services and stop the propaganda you have unleashed against both the Public Protector and Seanego attorneys where you mislead the public through statements suggesting that a ‘tender process’ should have been followed to appoint me to work through a private law firm. You know this to be hogwash,” he thundered on the page.

Asked about his contract with Seanego, he replied: “I had an agreement with Seanego Attorneys and the details of my contract with the private law firm are none of your business.”

On the issue of several road trips he had invoiced to Seanego, he responded: “The item is in an invoice I sent to a private law firm which has accurate and reliable knowledge about whether the said trips occurred.

“What exactly does this question have to do with a Section 194 impeachment inquiry of a Public Protector?”

‘Never said I was an advocate’

He revealed, however, that around September 2019, Seanego had “stopped paying for the services rendered”, and that “despite diligent search of my available records I have been unable to determine whether all my invoices sent to Seanego before that date were paid”.

He said that he had never referred to himself as an “advocate” or “SC” in any communication that he had authored.

He said the evidence leaders’ assumption that because others might have referred to him as SC, he should have “gone beyond that to police and prohibit anyone from calling me by honorific title I never claimed, is astoundingly foolish and has no legal basis”.

Somewhere in the thicket of questions and replies, Ngobeni lets rip: “Your request is extremely burdensome, unreasonable and abusive of my services for which you are not paying.”

The bundle of documents sent to the committee “indicate clearly that you have copies of all the invoices I sent to Attorney Seanego which you were able to publicise all over the news media. As part of your propaganda drive these included invoices that Mr Seanego never paid”.

Whether he had prepared or assisted in the preparation of the appeal papers to the Constitutional Court in relation to the Vrede Dairy report, he responded: “This is repetitive nonsense question and a waste of my time. I already state that I performed the services as reflected on Annexure ‘C’. I shall accordingly ignore your following sub-questions which are equally repetitive and nonsensical.”

Ngobeni’s response is contained in several volumes of the summation of evidence by advocates Bawa and Mayosi, which have been given to committee members to consider for the preliminary report which will be discussed on Friday 28 July. DM