Suspended Public Protector Busisiwe Mkhwebane couldn’t obtain a legal team for the “unrealistic and absurd” fee of R4-million, leaving the Section 194 committee inquiring into her fitness for office with no choice but to postpone her continued evidence by a week.

Mkhwebane was scheduled to continue with her testimony on Monday, after it screeched to a halt on 31 March due to an impasse about the funding of her legal team. The cash-strapped Office of the Public Protector indicated it couldn’t continue to fund her ever-burgeoning legal bill in the new financial year.

However, after meetings with the National Treasury, the Office of the Public Protector found a further R4-million from its retained surplus from the 2021-22 financial year, and availed this to Mkhwebane’s legal fees.

This R4-million brings the legal tab the Office of the Public Protector has picked up for Mkhwebane to R30-million. However, it appears this is not enough for Mkhwebane.

In a letter to the committee, dated 4 May, Mkhwebane wrote: "Going forward, I need time to secure legal representation. I am not sure as to where will I get a legal team that will agree to your unrealistic and absurd terms dictating that the work to be undertaken must not exceed an amount of R4000 000.00 or a period of one month."

She added: "It ought to be obvious that these are absurd and impossible conditions to impose given the nature and scope of all the outstanding items in the enquiry and the real possibility of having to engage either the previous or a new legal practitioner of my choice."

"Please take note of the fact that should my previous legal team not be able or willing to return, the new legal team, if agreeable to your capped fee, will still have to peruse the 65 000-page record, excluding the transcript of the illegal 'committee meeting'.

"This alone may take months. This would be so even if the other issues raised above regarding fairness were resolved, which is not the case at present. Either way, the conditions of service must be negotiated and agreed between PPSA, or any other appropriate organ of state, and my nominated legal team."

By Monday morning, her position hadn’t changed, and she appeared before the committee sans legal team.

While Mkhwebane couldn’t find a legal team to represent her at the inquiry proceedings, she did manage to brief lawyers for another court challenge against the proceedings, this time to the Constitutional Court.

In papers filed on Friday, Mkhwebane asked the apex court – whose judges she threatened with a complaint to the Judicial Service Commission in Monday’s meeting – to provide clarity on her legal funding.

Mkhwebane wants the Constitutional Court, which previously found she was entitled to be legally represented during the Section 194 inquiry into her fitness to hold office, to order that Parliament, inquiry chairperson Qubudile Dyantyi and President Cyril Ramaphosa and "alternatively the state, bear the legal obligation to provide resources" for that legal representation.

Mkhwebane demands unlimited state funding of her Section 194 defence on the Constitutional Court's earlier ruling that afforded her the right to be heard in her defence and "to be assisted by a legal practitioner or other expert of her choice".

She said the failure to grant her such funding amounted to a "malicious breach of the said binding court order" and "contempt of court at worst".

Furthermore, Mkhwebane also impugns the committee's decision to be briefed by the evidence leaders on the documentary evidence – mostly related to the raft of court decisions against her – while she was without legal representation in committee meetings, not hearings.

Mkhwebane, whose term ends in October, wants the process to start anew.

"I wonder why I was expected to come back, and we are continuing today," said Mkhwebane on Monday morning.

She said she had never handled the money for her legal fees; the Office of the Public Protector handled this.

"So basically, chairperson, I'm sitting here. I don't have a legal team," says Mkhwebane. "Unfortunately, this is a parliamentary process. You want to hold me to account."

There was a general agreement that the committee couldn’t continue on Monday. However, the parties supporting Mkhwebane throughout the proceedings – the African Transformation Movement (ATM), United Democratic Movement (UDM) and the Economic Freedom Fighters (EFF) – proposed that the hearings be postponed until after Mkhwebane’s case in the Constitutional Court, a course of action also preferred by Mkhwebane.

"Let's hear from the ConCourt," said UDM leader Bantu Holomisa. "Let us go slow and make sure that we clean all this mess."

EFF MP Omphile Maotwe said: "What we are doing to PP [Mkhwebane], is a serious abuse, because she must now use her own time and resources to go to the ConCourt."

African National Congress (ANC) MPs wanted the inquiry postponed until next Monday to allow Mkhwebane to find legal representation.

"There is nothing that is stopping the committee from doing its work," said ANC deputy chief whip Doris Dlakude. She said Mkhwebane's application to the Constitutional Court does not constitute an interdict.

African Christian Democratic Party MP Marie Sukers noted that R26-million had already been spent on Mkhwebane’s legal fees in what is a parliamentary process.

"I think we have extended fairness to the Public Protector until now. There is the issue of fairness to the South African taxpayer," she said, adding that this was something the committee as public representatives could not ignore.

Responding to Sukers, Mkhwebane said she, too, was concerned about the money spent on her legal defence, but she did not bring herself before the committee.

Despite asking for postponements for her and her legal team to prepare for and participate in legal challenges to the process and her suspension, twice being booked off sick, having brought an unsuccessful application for Dyantyi and Democratic Alliance MP Kevin Mileham's suspension, her former advocate Dali Mpofu SC, spending hours "raising matters" in the committee and calling witnesses not related to the charges against her, Mkhwebane blamed the committee for the protracted proceedings, which drove up her legal costs.

She also complained that it was not fair to raise the issue of her legal fees, while the evidence leaders, advocates Nazreen Bawa SC and Ncumisa Mayosi, were paid by Parliament.

However, their fees are on the public record and are dwarfed by the R130 000 a day paid to her former legal team.

Dyantyi postponed the meeting to next Monday and said they would proceed without any "discussion" about Mkhwebane's new or old legal team being absent.

He noted that Mkhwebane had a right to approach the Constitutional Court but added this was not an impediment to the committee continuing with its work.