Mkhwebane doesn't understand basics of the legal system, says her own lawyer

Public Protector Busisiwe Mkhwebane.
Public Protector Busisiwe Mkhwebane.
Jan Gerber, News24, file
  • Public Protector Busisiwe Mkhwebane has told a court her own legal team did not act according to her instructions when they withdrew her opposition to a court battle.
  • Police Minister Bheki Cele took her to court to have a report that made damning findings against him set aside.
  • Mkhwebane said when her legal team withdrew their opposition to the case they were not acting according to her instructions.

Public Protector Busisiwe Mkhwebane wants a judgment rescinded because she claims her lawyer was not acting on her instructions when he withdrew opposition in the matter.

But Advocate William Mokhari said Mkhwebane does not know the basics of the legal system and he acted to avoid a personal cost order on her behalf.

Mkhwebane has approached the High Court in Pretoria to have a judgment in June that concluded that the Public Protector's report on witness protection matters involving two KwaZulu-Natal whistleblowers should be declared invalid and be set aside.

She has told the court that when Mokhari withdrew her opposition in the matter, he was not following her orders.

Mkhwebane said in her papers:

At the time of withdrawing my opposition, although a representative of my office was present and my attorneys were also present, I was not consulted by either representative, my attorney as well as counsel on the decision to withdraw my opposition.

Cele launched a judicial review of a report by the Public Protector that found that he, along with the South African Police Service (SAPS), failed to provide protection to whistleblowers on corruption and police killings in KwaZulu-Natal.

Powers

In the report, Mkhwebane found that Cele and the police's failure to protect the two whistleblowers could have resulted in their assassination.

The whistleblowers Thabiso Zulu and Lesley Stuta were witnesses in her investigation into alleged multimillion rand corruption in the Umzimkhulu Local Municipality.

READ | Cele 'vindicated' after whistleblower ruling, but Public Protector's office says agreement voluntary

Cele argued that he did not have the powers to grant Zulu protection, and Mkhwebane initially opposed the matter.

But the parties had obtained an order by consent in the High Court in June after Zulu approached the court on an urgent basis in separate proceedings in March requesting protection from the minister as per the Public Protector's report.

Far-reaching consequences

Mkhwebane said in the new legal proceedings to rescind the judgment she would have not withdrawn her objection to Cele's review.

Mkhwebane said: "I have already demonstrated herein that although my legal representatives were physically present in court on the 3rd of June 2020 the fact that my opposition was withdrawn, entailed that I was not present before court at that the order was obtained in my default."

She said given the far-reaching consequences of the order granted, she would have not withdrawn her opposition to Cele's case.

Mkhwebane said the court order that was used as a basis to come to an agreement between her legal team did not apply to her report even though it involved the same whistleblowers. She said that court judgment did not deal with the part of her report which found that Cele failed to cooperate with and respect her office.

But Mokhari said had Mkhwebane not withdrawn this matter in light of the separate judgment in the same matter, Mkhwebane would have had a personal cost order against her.

He said:

The court would have found her to be vexatious and would have ordered costs. There was no way that the case could have not been withdrawn.

Mokhari said he believed Mkhwebane did not understand the basic tenets of the legal system.

"There was a representative from her office that was consulted. The attorneys who briefed me were consulted," he said.

Mokhari said Mkhwebane's application to have the judgment rescinded was a waste of time and a cost to the taxpayer.

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