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‘No other option’: Section 194 Committee draws the line with Mkhwebane after delays
The Public Protector's dispute over her attorneys dominated proceedings on Friday.
Public Protector Busisiwe Mkhwebane during the inquiry into her fitness to hold office at Parliament on 2 November 2022. Picture: Gallo Images/Brenton Geach
The Section 194 Committee appears to be at wit’s end with the continuous delays in the inquiry investigating suspended public protector Busisiwe Mkhwebane’s fitness to hold office.
Committee members have now decided that all questions to Mkhwebane will be in writing.
On Friday, the impeachment inquiry got underway, but proceedings were again plagued by the impasse of her legal representation.
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Mkhwebane was scheduled to testify on matters related to Bosasa and the South African Revenue Service (Sars).
The State Attorney had taken over from private law firm Chaane Attorneys to act on behalf of Mkhwebane following the hospitalisation of its Advocate Hope Chaane.
Solicitor-General Fhedzisani Pandelani terminated Chaane Attorneys’ mandate at the request of the financially constrained Office of the Public Protector, which has made only R4 million available to cover Mkhwebane’s legal bills.
Conflict of interest
In Friday’s meeting, the Section 194 Committee was informed that the status of the State Attorney as Mkhwebane’s legal representative was “in dispute”.
Isaac Chowe, who works for the State Attorney’s office in Pretoria, said the Public Protector has claimed that the office was conflicted.
“Therefore, when the State Attorney is conflicted, they cannot profess to be acting on her behalf, and the genesis for the conflict of interest is that the State Attorneys in Cape Town have appointed the evidence leaders in this particular hearing.
READ MORE: ‘R4m not enough for Busi’s hearing’: Legal expert says Mkhwebane may need more funds
He told the committee that once a client objects to being represented, it would be unethical for him to represent her.
Chowe said that Mkhwebane’s legal team – Advocate Dali Mpofu and his two junior counsel – were briefed; however, they also seem to have “issues with their status”.
“The main client does not necessarily recognise or agree with her representation by the State Attorney.
The brief to Mpofu is now null and void, according to Chowe.
Another issue highlighted to the committee was whether or not the R4 million allocated to pay Mkhwebane’s legal bills included counsel, travel, security and accommodation for the suspended public protector.
Watch the proceedings below:
Chowe also said her legal funding matter was pending before the court as she would have to foot the bill if the R4 million ran out.
Last month, Mkhwebane approached the Constitutional Court (ConCourt), seeking an order to compel the state to bear the legal obligation to provide funding for her lawyers.
‘Constructive contempt of court’
Another issue was Mkhwebane’s latest recusal application against the committee’s chairperson Qubudile Dyantyi.
“Unfortunately, as I have said, the State Attorney in Pretoria and myself have no mandate to move such for the recusal of the chairperson because of my status,” Chowe said.
Chowe said Mkhwebane, however, did not object to legal representation from any attorneys on the Public Protector Office’s database.
READ MORE: ‘Uncharted waters’ – Experts divided on whether Dyantyi should stay or go
He further said he received no instructions from the Public Protector’s office on an alternative.
Asked if there was indeed a conflict of interest, Chowe said it was a very difficult question because it was a subjective matter.
Written submissions
Following a 15-minute break, Dyantyi said the committee was operating in a tightly determined timeline and was bound by the Constitution to complete its task fairly within a reasonable time as well.
“We have been given R4 million; there is no intention, as we indicated [last week] Friday, to extend those 22 days. There is no intention to deplete the R4 million and ask for more money,” he said.
He said there have been “hurdles” since February and March, and as soon as the matters were addressed, another hurdle was put in the committee’s way.
“It’s at this point that we seem stuck and unable to move because of issues of availability of counsel, amongst others,” Dyantyi said.
As a way forward, Dyantyi proposed that members of the committee and the evidence leaders put all their questions to Mkhwebane in writing.
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He said the suspended public protector will get an opportunity to respond to these questions either in writing or orally if she picked the second option.
“If her preference is to respond in writing, I will allow time for that to be submitted under oath,” he said.
“Should the Public Protector fail to answer, the committee will have no choice but to make its findings based on the evidence already before it, including the Public Protector’s statements which were done under oath. Thankfully much of the evidence is already in the form of affidavits to assist us in our task.”
Dyantyi said Mkhwebane, through her counsel, can submit a closing statement in writing or orally.
The evidence leaders will also be expected to summate evidence, while the draft report of the inquiry will be written after members have deliberated.
The report will then be provided to Mkhwebane for comment, which, in turn, will be her “final audi” before a final report is tabled in the National Assembly.
According to a revised programme, the committee aims to complete its work by 28 July.
“Given the time and cost considerations [as well as] practical difficulties with availability, there does not seem to be any other option,” Dyantyi said.
ANC members – including Violet Siwela, Bheki Nkosi, Boyce Maneli, Doris Dlakhude – supported the proposal.
Democratic Alliance (DA) MPs Mimmy Gondwe and Kevin Mileham also backed the move.
A visibly frustrated Mkhwebane objected to Dyantyi’s proposal, labelling the move as “unlawful”.
Recusal application
The suspended public protector also told the committee she will not file her application for Dyantyi’s recusal as she did not have any attorneys.
Dyantyi had asked Mkhwebane to send the application by Friday so he could respond by 1pm on Monday.
Mkhwebane wants Dyantyi to recuse himself over allegations that the ANC MP sought to solicit a bribe from the public protector’s husband, David Skosana, on her behalf.
Skosana has opened a case of extortion, while Mkhwebane has since complained to Parliament’s Ethics Committee.
Her recusal matter against Dyantyi and Mileham is currently in court after she was granted leave to appeal to the Supreme Court of Appeal (SCA).
Mkhwebane sought to appeal the Western Cape High Court’s previous ruling, which dismissed her application to have Dyantyi and Mileham recused from her impeachment inquiry.
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