UPDATE: LPC to deliberate on Friday whether Mkhwebane should be scrapped from advocates roll

Public Protector Busisiwe Mkhwebane. (Netwerk24)
Public Protector Busisiwe Mkhwebane. (Netwerk24)

The Legal Practice Council is expected to deliberate on whether Public Protector Advocate Busisiwe Mkhwebane should be struck off the roll on Friday.

This after it received a request from non-profit organisation, Accountability Now, who wrote to the Council following Monday morning's Constitutional Court judgment which found Mkhwebane had acted in bad faith and put forward a "number of falsehoods" in the Absa/Bankorp case.

The LPC, which regulates the legal profession, confirmed to Fin24 on Tuesday that it had received the request.

"Council requests to be afforded time to review the Constitutional Court judgment and its implications in the light of the request for a striking off application," the LPC’s acting executive officer Charity Nzuza wrote in an email to Fin24.

On Wednesday, however, Accountability Now said the LPC had confirmed that it would be deliberated on on Friday.

Advocate Paul Hoffman, director at Accountability Now, told the LPC, "As you know, it is intolerable that an officer of the court should be found to be lying on oath. Our highest court has so found in respect of Ms Mkhwebane. Her response that the judgment of the court creates a bad precedent is contemptuous of the court and does her no credit."

Hoffman's letters and Nzuzu's responses were also provided in a press release by Accountability Now. 

The Constitutional Court majority judgment upheld a February 2018 North Gauteng High Court ruling that Mkhwebane pay 15% of the SA Reserve Bank’s legal fees in the Asba/Bankorp review case. Her remedial action that Absa Bank should pay back R1.2bn for an apartheid era bailout to its subsidiary and the central bank’s mandate should be widened, were set aside.

The apex court found she had acted in bad faith and put forward a "number of falsehoods" during the litigation.

Fighting fires

Mkhwebane is fighting fires on several fronts. The personal costs order against her is likely to amount to hundreds of thousands of rands, according to legal experts. The North Gauteng High Court will also use the ConCourt judgement to decide whether she must pay out of her own pocket for the setting aside of her report on the Estina dairy farm in May.

At the same time, she is battling it out in court against Minister of Public Enterprises Pravin Gordhan, who wants her adverse findings of his involvement into the so-called South African Revenue Services ‘rogue unit’ set aside and for her to bear the legal costs personally.

The DA, Meanwhile, is trying to have Parliament probe her fitness to hold office for the third time.

The LPC is a national, statutory body established in terms of Section 4 of the Legal Practice Act of 2014 and is "mandated to regulate the professional conduct of legal practitioners to ensure accountability", according to its website.

The LPC is relatively new and started operating in November 2018. The regulatory body includes both advocates and attorneys for the first time and bar associations can continue to exist as voluntary organisations.

Having high profile officials struck off the roll of advocates has previously proven difficult. The General Council of the Bar lost its appeal to the ConCourt in June to have senior National Prosecuting Authority officials, Nomgcobo Jiba and Lawrence Mrwebi removed as advocates.

The court found then that the bar did not establish that the matter fell within its jurisdiction. It is unclear how this will affect the new regulatory and the complaint involving Mkhwebane.

Mkhwebane’s CV to Parliament lists her as an advocate of the High Court and having obtained B. Proc and LLB degrees in the early 1990s from the University of the North (Currently the University of Limpopo).

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