Public protector Busisiwe Mkhwebane has made a surprise request in court to be allowed to help draft narrowed terms for the Zondo inquiry into state capture for the rest of the commission's hearings.
She is also insisting that she could have done the job at a fraction of the cost.
Her intervention, made in court papers, opens her to the accusation that she is seeking to usurp the president and the commission's powers.
It also casts light on high-profile individuals due to face a grilling before the commission chair, deputy chief justice Raymond Zondo, and his team - and whether she is setting up a possible easy pass for them.
Among those expected to appear or reappear before the commission are former president Jacob Zuma, ANC secretary-general Ace Magashule and former mineral resources minister Mosebenzi Zwane.
Mkhwebane's bid to intervene has drawn sharp criticism from, among others, the Council for the Advancement of the South African Constitution (Casac), which is cited in the matter, and the opposition DA, which said she has no place involving herself in the probe.
Mkhwebane's record in office, and a string of controversial findings by her, have been slammed by the courts. She has had to reopen her inquiry into the Estina dairy scandal, in which she failed to interview any of the political figures allegedly involved, including Magashule.
But her office yesterday defended her intervention.
The public protector filed the court papers in response to an application by Zondo to extend the life span of the commission to December this year. It is meant to wrap up its work next month.
Zondo presented two possible scenarios to ensure the commission meets the later deadline.
His lawyer, Paul Kennedy SC, said he could either ask the president to limit the commission's terms of reference, or "farm out specific aspects for investigation to other state institutions".
In a responding affidavit, Mkhwebane - who is cited in the Zondo affidavit - says she supports his application to extend the time frame of the commission, but wants the court to order a redefinition of its scope and include her as a key part of the process.
She wants the commission's terms of reference to "be confined to the issues which formed the subject matter of the original three complaints" submitted to her predecessor, Thuli Madonsela, whose "State of Capture" report recommended that an independent commission of inquiry be set up to investigate the looting of the state.
Mkhwebane says in papers: "It is my considered view that the President, Chairperson and Public Protector must be ordered or otherwise encouraged to produce a broad framework for the redefinition of the scope and timelines for the commission.
"Failing the above, the commission will fail to achieve its intended outcomes, may cost billions of rands and run for approximately and conservatively another four to five years. This would be nothing short of a disaster, more particularly in that so much scarce resources will have been expended while public trust in the process will almost certainly have been vastly eroded."
She says the commission's spiralling costs are a result of its decision to employ expensive lawyers to help do its work.
It is my considered view that the President, Chairperson and Public Protector must be ordered or otherwise encouraged to produce a broad framework for the redefinition of the scope and timelines for the commission
— Public protector Busisiwe Mkhwebane in court papers
"I am of the view that the commission's decision to employ 11 advocates, including five who are senior counsel, was unwarranted given the scope of the work to be done. There are those, like me, who believe that the work could have been efficiently done by employing a fraction of that complement of advocates and without such a top-heavy selection. At an average cost of R30,000 per advocate per day, the commission may well be paying more than R300,000 per day on the item of legal fees alone. This is clearly unsustainable," she says.
Mkhwebane told the court that there would have been no need for Madonsela's investigation into state capture to result in a full-blown commission of inquiry had the public protector's office been given money to conclude its own investigations.
"I can safely say that had the Public Protector been allocated even less than R50m, which is only about a tenth of what has been spent on the commission to date, the unfinished part of the investigation would have been completed by now at a minuscule fraction of the postulated costs by the end of the year. Should the commission be allowed to run much longer than this calendar year, the costs will either reach or exceed the one billion rand mark."
She also criticised the commission's format of using a single judge without any assistants to chair the hearings. "Had 'extra' senior counsel been assisting the chair, the possibility of parallel hearings could have been promulgated. In any event, the workload would have been shared."
Mkhwebane also took aim at the office of President Cyril Ramaphosa for not issuing periodic "implementation reports" on the work of the commission to her office, as it was required to do in terms of Madonsela's remedial action.
Political parties and legal bodies are opposed to Mkhwebane's manoeuvres as she is largely seen as a front for the faction waging a fightback against efforts to prosecute those central to state capture.
Casac said it supported the narrowing of the commission's terms of reference, but is opposed to Mkhwebane's involvement in any arrangement.
"Our view is that the public protector no longer has a role to play in this matter. The office of the public protector released a report on state capture in November 2016 and that then closed the issue as far as the public protector is concerned.
"The issue of those terms of reference is now a matter between the commission and the presidency," said Casac secretary Lawson Naidoo.
DA chief whip Natasha Mazzone said it would be a bad idea for Mkhwebane to be involved in drafting the scope of work for the Zondo commission.
"I think that given the fact that the public protector has just thrown her very elaborate 50th birthday party, where she invited many of the people who are being investigated by the Zondo commission, gives us absolute proof why the public protector should stay as far away from the Zondo commission as she possibly can," said Mazzone.
Our view is that the public protector no longer has a role to play in this matter
— Casac secretary Lawson Naidoo
Presidency spokesperson Khusela Diko declined to comment, saying that they had not yet seen Mkhwebane's affidavit. Spokesperson for the commission Mbuyiselo Stemela had not responded to questions at the time of going to print.
Public protector spokesperson Oupa Segalwe confirmed Mkhwebane had filed an explanatory affidavit, saying she was within her rights as she had been cited in the founding affidavit as a respondent.
Meanwhile, Mkhwebane's woes continued to mount this week as civil society coalition #UniteBehind and its organising secretariat member, Zackie Achmat, accused her of failing to properly investigate the Passenger Rail Agency of SA (Prasa), choosing to ignore key evidence of misconduct at the parastatal.
In an affidavit submitted to the Western Cape High Court on Wednesday, Achmat doesn't mince words, calling Mkhwebane's records "defective" and saying she had failed to ensure that Prasa complied with remedial action instituted by Madonsela.
It was submitted as part of #UniteBehind's efforts to review Mkhwebane's report into alleged misconduct at Prasa, a follow-up to Madonsela's 2015 "Derailed" report, which alleged corruption at the entity under former CEO Lucky Montana and former board chair Sifiso Buthelezi.
Responding to questions yesterday, Segalwe denied that Mkhwebane had failed to properly investigate Prasa. "She will defend the matter in court because clearly Mr Achmat does not know what he is talking about," he said in a written response.
"The Prasa investigation dealt with allegations of maladministration relating to financial mismanagement, conflict of interest and irregularities in procurement and appointment of staff. These are issues that were deferred from the first to the second leg of the investigation . Where she had evidence to substantiate the claims, she made adverse findings against Prasa, and where allegations were not backed up by evidence, she couldn't make findings against the parastatal," he said.
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