Africa-Press – South-Africa. The Pan-African Bar Association of South Africa (PABASA) is “disheartened” that Parliament’s Section 194 inquiry led evidence on the legal fees paid to several advocates, claiming it caused “selective, sensationalist and unfair criticism of the counsel involved”.
Several of the advocates named at Parliament’s Section 194 inquiry as having been paid by the Public Protector are members of PABASA.
The Section 194 committee enquiring into Mkhwebane’s fitness for office heard last week that Mpofu was paid over R12 million for representing Mkhwebane over three years, with very little success.
Last week, just a day after advocate Nazreen Bawa led Public Protector legal services senior manager Neels van der Merwe’s testimony, Mkhwebane and Mpofu suffered another court defeat – a full Bench of the Western Cape High Court dismissed Mpofu’s bid to push for Mkhwebane’s immediate reinstatement, despite the Constitutional Court being set to hear argument on the High Court’s invalidation of her suspension by President Cyril Ramaphosa on 24 November.
Spawned from a slew of court losses, often with scathing rulilngs against Mkhwebane, one of the questions before the committee is whether Mkhwebane has committed misconduct or demonstrated incompetence by “failing intentionally or in a grossly negligent manner to prevent fruitless and wasteful and/or unauthorised public expenditure in legal costs”.
Apart from the burgeoning legal fees, the evidence before the committee revealed that Mkhwebane sought to ensure the advocates representing her – including Mpofu, Thabani Masuku, Vuyani Ngalwana and Muzi Sikhakhane – “can fight with out (sic) interest at heart”.
All these advocates either represent or have represented former president Jacob Zuma or championed his cause in litigation. They are also all members of PABASA.
Masuku has received R4.5 million in legal fees from the Public Protector, Sikhakhane was paid R4.7 million and Ngalwana – who represented the Democracy in Action group that paid Mkhwebane’s Reserve Bank costs order through crowd-funding – got R4.7 million.
The evidence before the inquiry also shows that Paul Ngobeni, a fugitive from US justice who isn’t allowed to practise law in South Africa, was paid thousands of rands for “legal opinions” and communications services, including attack articles against judges who ruled against Mkhwebane, from the legal services budget through Seanego Attorneys.
Ngobeni subcontracted RET commentators Kim Heller and Professor Sipho Seepe for “communication services” – for which he invoiced Seanego Attorneys.
They conducted a media campaign praising Mkhwebane as the “people’s Public Protector” and lambasted the courts that had ruled against her.
The fact that they’d been paid R120 000 for this campaign was not openly declared and their support of Mkhwebane was presented as “independent” and “uncaptured” analysis.
In a statement released over the weekend, PABASA said it noted a screenshot on social media of the fees “apparently paid to a selection of individual advocates and attorneys for legal services rendered to the Office of the Public Protector”.
“PABASA fully accepts the importance of transparency in the manner in which public funds are used. However, PABASA is seriously concerned by the screenshot and the inaccurate and harmful message that it conveys,” reads the statement.
They say while public funds used for litigation is “obviously a matter that requires appropriate transparency”, it is unhelpful and misleading to simply set out the total fees paid to each legal practitioner without the critical context – including the period concerned, the number of cases and the time spent on the cases.
“Presenting the information in this way in public hearings which are live screened inevitably allows the information to be presented in the public domain out of context, with all the damaging consequences that flow from this.”
PABASA is further concerned that the list presented to the committee excludes white advocates briefed by the Public Protector.
“We have listened to the evidence before the inquiry and note that the evidence leader explained that the spreadsheet only depicts those counsel who had ‘earned a significant amount of money or more money or alternatively where they’ve been involved in cases which is (sic) before this committee in some way or another so there are many counsel that have been briefed that are not on this list.’
“But what is very concerning is that by listing the names of a select group of only black counsel who represented the Public Protector in a variety of matters of differing complexity and duration, the impression is created that the advocates listed are somehow complicit in the looting of public funds.”
However, while the screengrab distributed by people outside of the process didn’t include the names of white lawyers, the full list shown to the committee by Bawa did include the name of a white advocate, the late advocate Paul Kennedy SC, who was an accused in a child sex trafficking case, in which he faced charges of rape and sexual assault when he died in February this year.
PABASA said it accepts the need for comprehensive evidence to the parliamentary inquiry, but the “unfortunate manner” in which it was led has a “direct and adverse impact on the public perception of the professional integrity of the counsel listed on the spreadsheet and ignores the commercial reality that counsel provide a service – in return for a reasonable fee which is reflective of their expertise, experience, knowledge and skill”.
“It plays into the unfounded narrative of black counsel ‘fleecing the state’, which is reflective of the stereotyping that we continue to see in the media and in the profession. This must now stop.
“Advocates should not be equated with the clients they represent or maligned for doing so.”
The conduct of Mpofu, who has represented Mkhwebane since the start of her Stalingrad-defence against parliamentary accountability, is under scrutiny after he walked out of the Section 194 proceedings two weeks ago after the committee refused his request for an indefinite adjournment. He said that was where his mandate ended, but Mkhwebane said she had not withdrawn her legal representation’s mandate.
The inquiry will continue on Wednesday.
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