MKHWEBANE TO FILE ANSWERING AFFIDAVIT REGARDING LPC’s APPLICATION TO STRIKE HER OFF THE ROLL

Advocate Busisiwe Mkhwebane MKP chairperosn of Mpumalanga

By Busisiwe Mkhwebane Foundation

Former Public Protector of the Republic of South Africa Advocate Busisiwe Joyce Mkhwebane will file her Answering Affidavit in the High Court of South Africa (Gauteng Division, Pretoria) in the matter between the South African Legal Practice Council (LPC) and herself.

The detailed affidavit dismantles the LPC’s application, which seeks to strike her name off the roll of advocates or suspend her from practice despite her status as a non-practising advocate for more than 27 years.

In the affidavit, Advocate Mkhwebane confirms under oath that she was admitted as an advocate in 1997 but has never practised in any capacity.

She has never been a member of any society of advocates or bar council; has never taken chambers, never accepted briefs, never appeared in court as counsel, never operated a trust account, and has never been subjected to the regulatory regime applicable to practising legal practitioners.

Every allegation in the LPC’s founding papers relates exclusively to her conduct, reports and decisions made in her Constitutional capacity as Public Protector under Chapter 9 of the Constitution – not as a legal practitioner.

The answering affidavit characterises the LPC application as an impermissible attempt at triple jeopardy and an abuse of process.

Advocate Mkhwebane has already been subjected to severe personal punitive costs orders by the Constitutional Court and removed from office by resolution of the National Assembly under section 194 of the Constitution.

She further highlights that she was denied legal representation during the critical final stages of the section 194 committee process, undermining the fairness of the findings now relied upon by the LPC.

Procedural irregularities are also raised, including the absence of proper service of correspondence and the denial of a meaningful opportunity to make representations before the LPC resolved to launch these proceedings in breach of the audi alteram partem rule and section 33 of the Constitution.

Advocate Mkhwebane emphasises that as a non-practising advocate who has never held herself out to the public or handled client affairs, she poses no conceivable risk to the public, the courts or the legal profession.

The relief sought is therefore wholly disproportionate, punitive in nature, and serves no legitimate regulatory purpose.

It is with profound disappointment that we record the repudiation by certain legal representatives of their engagement in the defence of this claim, apparently influenced by political considerations linked to the Phala Phala matter.

Phala Phala has no bearing whatsoever on the present proceedings, which concern solely Advocate Mkhwebane’s long-standing status as a non-practising advocate and the LPC’s regulatory overreach into the domain of a Chapter 9 constitutional institution.

This development once again exposes the extent to which political pressure continues to be brought to bear on legal practitioners who dare to defend accountability champions.

We confirm that new attorneys have been approached and are being instructed to defend this matter with the vigour and independence it demands.

Advocate Mkhwebane remains steadfast in her commitment to the Constitution, the rule of law and the principles of natural justice.

The application is misconceived in law and in fact; procedurally irregular; constitutes an abuse of process and multiple jeopardy; and falls to be dismissed with costs on the attorney and client scale.