COMMITTEES 179

PARLIAMENT 1
PO Bolt 15 Cape lown 8000 epubhc of South Africa
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OF THE REPUBLIC OF SOUTH FRICA
www parhament.gov.rn

Committee for Section 194 Enquiry

Chairperson: Mr QR Dyantyi, MP

Committee Secretary
Mr Thembinkosi Ngoma
Tel:
Email:tngoma@parliament.gov.za

20 September 2022

Att: Paul Ngobeni

By email:

Dear Sir and Madam

REQUEST TO URGENTLY PROVIDE INFORMATION AND RECORDS TO THE

COMMITTEE FOR S194 ENQUIRY INTO THE REMOVAL OF ADV B MKHWEBANE AS
PUBLIC PROTECTOR

As you may be aware, the National Assembly is seized with a motion to remove Adv
Busisiwe Mkhwebane from the office of Public Protector on the grounds that she is
incompetent and/or has committed misconduct, as set out in a Motion tabled before
Parliament.

The Committee on the Section 194 Enquiry (“the Committee”) must, in terms of
section 194(1)(b) of the Constitution, make a finding on the grounds of misconduct and/or
incompetence set out in the Motion. As such, the appointed Evidence Leaders,
Adv Bawa SC and Adv Mayosi have been gathering evidence to put before the Committee
to assist it in assessing the Motion. This exercise includes gathering evidence that either
exonerates or implicates Adv Mkhwebane on the grounds as alleged. The process is not a
judicial or quasi-judicial process and the Evidence Leaders do not act as prosecutors.

In paragraph 11 of the Motion that is before the Committee, the following is alleged:

“11. Adv. Mkhwebane has committed misconduct by and/or demonstrated

incompetence in the performance of her duties by:

11.1 failing intentionally or in a grossly negligent manner to manage the

internal capacity and resources of management staff, investigators
and outreach officers in the Office of the Public Prosecutor
effectively and efficiently;
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11.2 failing intentionally or in a grossly negligent manner to prevent

fruitless and wasteful and/or unauthorized public expenditure in legal
costs;

11.3 failing intentionally or in a grossly negligent manner to conduct her

investigations and/or make her decisions in a manner that ensures
the independent and impartial conduct of investigations; and/or

11.4 by deliberately seeking to avoid making findings against or directing

remedial action in respect of certain public officials, while
deliberately seeking to reach conclusions of unlawful conduct and
impose far-reaching disciplinary measures and remedial action in
respect of other officials (even where such conclusions and/or
measures and/or remedial action manifestly had no basis in law or in
fact).”

It has come to the Evidence Leaders’ attention that you may have in your possession or
under your control documentation/information of relevance to the Committee’s
consideration of part of Clause 11 of the Motion. This is informed by documentation
attached hereto. In addition, the Evidence Leaders require clarity in relation to
documentation and information that has come to their attention during the course of the
investigation and which makes direct reference to you and the services rendered by
yourself to the Public Protector (“PP”) and/or office of the Public Protector (“PPSA”).

To confirm the precise nature and capacity in which you rendered services to the PP
and/or PPSA, clarity is sought in relation to the following:

1. Whether you sought to have the findings, conclusions and remedial action
contained in the PPSA closing report 17 of 2011/2017 as finalised in 2012 reviewed
and set aside. For ease a copy as found on www.pprotect.org is provided herewith.

2. It is noted in the aforementioned report that it was represented to the then Public
Protector, which representations were recorded in the report, together with
evidence from information and documentation (not identified) to the effect, inter
alia, that you were eligible to practice 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, but that you had elected not to enrol with either the Bar or
the Law Society and that such enrolment was not a requirement for the job of
advisor – the appointment of which was the subject of scrutiny in that report.

3. A copy of the Ministerial exemption to which is referred is requested.

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4. A copy of the court order arising from the proceedings of admission as either an
attorney or advocate – and during which proceedings customarily an oath is
administered to those wishing to practice law in South Africa and as a precursor to
what would have been entry to the separate rolls of attorney and advocate. If you
are not able to find such order, a copy of the case number and application filed at
court for admission is requested.

5. If you have not been admitted as an advocate or attorney in a court of law, can you
advise whether you are indeed the “Adv. Paul M. Ngobeni” reflected on the invoice
attached marked “A”, who had sought fees for travel from Lydenburg to Pretoria
(2x) in the amount of R 17500 and reading, drafting and attending to revisions
during the period 28 June 2018 to 5 July 2018 totalling R 45 625.00 qua Advocate?

6. It is further noted from invoices and correspondence, examples of which are

annexed that reference is made interchangeably without any prefix (“D”), as “Adv”
and with the prefix of “SC”. Could you advise whether (1) you are indeed an
admitted advocate and (2) received letters patent to be referred to as SC; and (3)
any written communication in which any such misconceptions (if this was the case)
would have been corrected on your part, more particularly, any such corrections
made whilst working on what was known to be the Public Protector Project at the
time?

7. We further note that invoices were rendered not only as Adv. Paul M. Ngobeni, but
also as Ngobeni Executive Consultants (“C”) with reference to payment and in the
name simply as being made into the account of one Abel Ngobeni, and not the
entity in whose name the invoice is rendered.

8. Could you kindly advise whether you had in fact rendered services in the capacity
as Ngobeni Executive Consultants during the period May to July 2019, or in the
capacity as an advocate or senior counsel? If in relation to the former, were the
requisite procurement laws complied with in the sourcing of your services?

In addition, and further arising from the above the Evidence Leaders request that you
provide the following documentation and/or information for purposes of putting such before
the section 194 Committee:

9. As evident from an email dated 25 September 2019 (“B”) it appears that either
Ms Kim Heller, alternatively Mr Mfankhona Hlatshwayo, had provided you with an
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invoice in the week preceding 25 September 2019. A copy of such invoice is

requested.

10. All invoices rendered to Seanego Inc., alternatively Mr T Seanego in relation to

services rendered with reference to the PP and/or PPSA and matters under their
attention. Records reflect that Mr Seanego had received payment from the PPSA
in respect invoices so rendered by you or on your behalf.

11. With reference to a number of emails, which for ease will be attached with
reference to the relevant pages as appearing in the record before the Inquiry, the
following information is sought:

11.1. P. 3443 – In an email dated 30 January 2019 Adv Mkhwebane appears to

have instructed the Senior Manager: Legal Services to contact
“Ngobeni SC” to check his availability to deal with the matter of Anton
Louis Mostert & Others // Public Protector & Others. Can you advise
whether this was you, whether you been so contacted and whether you
had indeed rendered services in respect of such matter? If so for what
fee, paid by who into which bank account?

11.2. P. 3457 – In an email dated 23 May 2019 an article headed “Mobilising the
judiciary for political attacks on the Public Protector: Can justice be done
amid efforts to intimidate and remove our Public Protector? By Paul
Ngobeni” refers. From the email it appears to be a draft in respect of
which feedback was sought and from which it appears that
Adv Mkhwebane confirmed an instruction that “article is good, he can
published [sic]”. Can you advise where the said article had so been
published and a published copy thereof is requested (please note that
whilst full articles referred to are not annexed on the presumption that
such may still be in your possession, should you require such it only needs
to be requested from the Secretariat).

11.3. P. 3455 – In an email dated 23 May 2019 you were provided directly with
documentation pertaining to the DA and CASAC (Vrede matters) case
attached to an email from the PP. And when read with p. 3453, you had
previously received a request earlier that day to assist in the preparation of
the appeal papers. Can you confirm that you had drafted the notice of
appeal from the judgment handed down by Potterill J as foreshadowed in
these emails? If so for what fee, paid by who into which bank account?
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11.4. P. 3205 – In an email dated 13 June 2019, Ms Heller represented that

“Paul will send his costs under separate cover” in an email addressed to,
inter alia, Mr Seanego – you are included in this email. Can you kindly
provide a copy of the cost that was so sent under separate cover?

11.5. P. 3193– In an email dated 13 June 2019 you had provided what was
styled as “Representations in opposition to incompetent, misguided and
misinformed calls from BUSA to institute removal proceedings in respect of
the Public Protector, Ms Busisiwe Mkhwebane” and indicated that the
letter should be sent by an NGO or activist outfit and not on behalf of the
PP. The email contemplates in paragraph 1 that it be done by an
organisation with the abbreviation “BLF”. Can you kindly advise whether
such letter had indeed been sent and had been sent by the “NGO or
activist outfit” as contemplated? Were you instructed to do so? Had you
received a fee, and if so, paid by who into which bank account? Can you
kindly provide a copy of your instructions for purposes of doing so?

11.6. P. 3233 – In an email dated 1 July 2019 at 13:43 you furnished what was
headed an “Advisory opinion on the urgent need to litigate the matter of
the section 194 removal”. It appears from the invoices rendered that you
had been paid by Seanego Inc. for purposes of rendering such opinion.
Can you kindly provide a copy of your instructions (3382) for purposes of
doing so?

11.7. P. 3252 – With reference to your email of 4 July 2019 and a letter to the
Speaker of Parliament, can you confirm that you had been paid by
Seanego Inc. in relation to the preparation of such letter and precisely
what you had been paid in relation thereto, and in consultation with
precisely who such had been prepared?

11.8. P. 3253 read with p. 3500 – With reference to an email dated 22 July 2019
you sought to render advice in respect of the seeking of a reconsideration.
Could you kindly advise as to whether you had been paid for the rendering
of such advice and if not, in which context such was provided? Further
with reference to P. 3500 you were forwarded an email received from
Adv Paul Hoffmann SC from the Institute of Accountability in Southern
Africa. Can you advise to what purpose such email was sent by the PP to
inter alia yourself and others and whether you had rendered any work
product in relation thereto for which you were paid?
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11.9. P. 3261 – With reference to the email of 5 August 2019, Adv Busisiwe
Mkhwebane instructed that Adv Masuku SC was to be briefed “provided
we use Ngobeni”. Further thereto, as reflected on p. 3263, Mr Seanego
was provided with an instruction that Adv Thabani Masuku SC, assisted by
Adv Hangwi Matlhape with Adv Ngobeni SC “providing support in the
background” would be used in respect of Case No: 48521/19. Can you
advise as the extent to which you were so-called “used”; what fees you
were paid in respect of such usage; and whether such payment was also
received into the bank account of Abel Ngobeni. Can you confirm whether
you were aware that such instruction was given on the basis that you were
an advocate with senior counsel credentials, and if so, on what basis was
it necessary for you to remain in the background?

11.10. P. 3271 – With reference to your email dated 6 August 2019 to which you
had sought to develop what is referred to as “Standard responses” and in
particular a “Response on Hoffmann inquiry”. Can you confirm that you
had received payment in respect hereof? How much, from whom, and
precisely when such was paid into which bank account?

11.11. P. 3296 read with p. 3298 – In an email dated 15 August 2019 you
provided a draft of the appeal argument under cover of this email,
ostensibly advising of a “Political mobilisation of the judiciary”. You
advised in respect of what was regarded as “The emerging pattern of
deliberate judicial sabotage of the PP’s work”. Could you kindly advise as
to whether you were instructed to render the appeal argument; where such
instructions emanated from; whether you were paid in relation thereto; and
whether such was actually presented at the Constitutional Court? Further,
could you confirm as to whether you were on brief with Adv Masuku SC
qua advocate in rendering this advice in this matter?

11.12. P. 3386 – Email of 27 August 2019 reflects an attachment of a draft

affidavit in the matter of the Minister of State Security v Public Protector.
Can you confirm that you had received an instruction to settle such
affidavit and was briefed with Adv Masuku SC to do so? Can you confirm
that you had received payment in respect hereof? How much, from whom,
and precisely when such was paid into which bank account?

11.13. Pp. 3356 – 3361 – With reference to the article headed “Judge Potterill’s
unethical and incompetent judgment in Gordhan v Public Protector”, can
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you advise whether this was prepared pursuant to an instruction received

to do so and kindly provide such? If so, by whom; how much were you
paid in relation thereto; and into which bank account such payment was
effected.

11.14. P. 3390 – Email dated 28 August 2019 to which an article headed “Can
judgment in the Jiba dismissal case provide grounds for impeaching
President Ramaphosa?” Can you advise whether you had been instructed
to draft this article/advice; whether you had received payment in respect
thereof; how much you were so paid; from whom such payment was
received; and into which bank account such payment was made.

11.15. P. 3402 – With reference to your email dated 5 October 2019, and in
particular the court application brought by Accountability Now, in relation to
which you stated, “In summary, we can and must defeat the Accountability
Now case based on the following…” Can you kindly advise as to the extent
of your involvement in this litigation; having rendered an advisory opinion;
what you got paid therefor; who paid you; how you got paid; and whether
such too had been paid into the bank account of Abel Ngobeni?

11.16. P. 3432 – With reference to your email dated 18 November 2019 in which
you complain that your invoices were not being paid, which was brought to
the attention of the Senior Legal Manager, Alfred Mhlongo, Mr Muntu
Sithole and the late Mr Sibusiso Nyembe. Can one infer that they were
required to confirm such payment?

11.17. P. 3400 – Can you confirm your presence at a meeting which occurred on
19 December 2019, together with “Kim Heller and team and various
members of the Office of the Public Protector in the PP’s boardroom? For
what purpose was such meeting convened?

You will appreciate that this information is necessary to allow the Committee to obtain a
clear picture of events that transpired during this time for a consideration of the clauses of
the Motion referred to above and precisely what was paid for from funds of the PPSA, to
who and whether this occurred in a legally complaint manner to establish whether there
can be any credence to what is set out in the Motion. Further, it appears that Wekunene
BS (Pty) Ltd or Kim Heller and/or Sipho Seepe may have been rendering invoices through
you, with an expectation that the fees for such serviced would be settled.
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Further as the subject matter of a number of the line items as reflected on the invoice
marked “C” do relate to cases which form the subject matter of other charges as contained
in the Motion, such cannot be ignored. Should you require the complete Motion, such can
be obtained from the Secretary.

I request that you urgently comply with the request of the Evidence Leaders and lend them
your full co-operation in this matter. No doubt you are well acquainted with the importance
and impact of a matter of this nature on our constitutional democracy.

Accordingly, I request that you submit the information as requested by no later than
26 September 2022, which information can be provided to the Secretariat. I would also
appreciate if you could indicate at the same time whether you are prepared to voluntarily
appear before the Committee to answer questions relating to this matter, should the
Committee require you to provide oral evidence.

You are reminded that, the Committee is empowered to summon you in terms of
section 56(a) of the Constitution, read with section 14(2)(b) of the Powers, Privileges and
Immunities of Parliament and Provincial Legislatures Act, No. 4 of 2004, should it so be
necessary to do so. Though, at this juncture there are no indications that your oral
evidence would be required, however, in the event it does become necessary, i.e. where
the documentation and information requested is not sufficient; you shall be so informed,
where after the exact date and time to appear will be determined and you will be apprised
thereof, but I reiterate there is currently no intent to do so.

I trust that the Committee will receive your full co-operation.

Should you have any questions in this regard, please do not hesitate to contact me on the
above-mentioned contact information.

Yours faithfully

Mr TK Ngoma
Secretary: Committee for Section 194 Enquiry