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Removing Mkhwebane from the advocates roll not a tall order – Advocate Hoffman

Public litigation institute Accountability Now director Advocate Paul Hoffman said on Monday that to have its plea to the Legal Practice Council (LPC) to strike Public Protector Busisiwe Mkhwebane off the roll of advocates heeded, is “not a tall order”.

Advocate Hoffman spoke to Polity in an exclusive interview referencing the recent Constitutional Court judgment, which found that Mkhwebane lied under oath in the affidavit filed in support of her case in the Reserve Bank matter.

On Monday the Gauteng High Court also suspended Mkhwebane’s remedial action in a case involving Public Enterprises Minister Pravin Gordhan.

“An advocate lying under oath in any court is a hanging offense as far as the fitness and properness of advocates to be on the roll of advocates. I don’t think that the Legal Practice Council will have any difficulty with its deliberations on the matter from a point of view of principle. It is not appropriate that advocates lying to courts be allowed to remain on the roll of advocates,” Hoffman stated. 

Accountability Now wrote a letter to Parliament in January 2017 pointing out that Mkhwebane did not appear to be honest and that she did not seem to understand the way in which her office was meant to work. 

He said Parliament did not act on their complaint which is why they have turned to the LPC.

“We are armed with the findings by the highest court in the land that our suspicions about her honesty were well founded and that she is so dishonest that she is prepared to lie under oath in order to get herself out of a tight spot; and the court has also said that the way in which she goes about her work, and the way in which she organises her office and produces her reports is not in accordance with the basic tenets of natural justice.

“She didn’t give the Reserve Bank an opportunity to point out to her that she was wide off her mark when she said that its mandate must be amended by Parliament. She has no business telling Parliament what to do, it’s not her function,” Hoffman said.

When asked his response to the LPC having asked for more time to deliberate on Mkhwebane’s role, Hoffman told Polity that he did not know why they needed more time as it was clear to him that advocates were not allowed to mislead courts with perjured affidavits.

He pointed out that Mkhwebane had committed a criminal offence in front of the Constitutional Court and added that as a result, she was not fit and proper as an advocate.

When asked about the qualities his organisation expects from a public protector, Hoffman said the Constitution indicated that the Public Protector’s office must operate without fear, favour or prejudice and that its integrity must be protected by other organs of State.

“I fear that she has been promoted beyond the limits of her understanding and her level of competency and it is creating a lot of litigation and it is putting her at risk of more personal costs orders because she doesn’t seem to learn,” he stated. 

She has also been found wanting on a horse racing industry case, Hoffman pointed out, adding that she produced an “incompetent” report.

“She has asked Parliament to pass remedial legislation about the way the horse racing industry is organised whereas the Constitutional Court says it is a provincial competency not a parliamentary competency,” Hoffman explained.

On the matter regarding Gordhan, Hoffman predicted that the Public Protector would lose her court bid and that her remedial action will be interdicted. He also predicted that her report would be reviewed and that the review would be successful.

When asked whether he thinks Advocate Mkhwebane should continue with handling new cases while Accountability Now’s case with the LPC was pending, he said her deputy Kevin Malunga was more than capable of working on cases to avoid backlogs.

Hoffman said if Mkhwebane was properly advised she would resign tomorrow, if not today.

“Unfortunately she doesn’t seem to take proper advice and if the Busi Must Fall Movement has to embarrass her into resigning – so be it,” he said. 

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