‘No interdict’: Section 194 Inquiry to resume next week despite Mkhwebane’s court bid

The Section 194 Inquiry will resume next week for suspended public protector Busisiwe Mkhwebane to continue with her testimony.

The parliamentary inquiry into Mkhwebane’s fitness to hold office could not hear evidence from the Public Protector as the issue of her legal defense’s funding dominated proceedings on Monday.

Mkhwebane has approached the Constitutional Court (ConCourt), seeking an order to compel the state to bear the legal obligation to provide funding for her lawyers.

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The Office of the Public Protector has placed a R4 million cap on her legal bills for the inquiry, much to the frustration of Mkhwebane.

The amount is surplus funds from the 2021/2022 financial year, according to the office.

The Chapter 9 Institution informed Parliament last week that it cannot afford to pay Mkhwebane’s legal team any further as it has already spent R30 million on the impeachment process.

‘Inquisitorial process’

Appearing before the Section 194 Committee, Mkhwebane maintained that she was entitled to full legal representation as per the ConCourt’s previous judgment.

She told the committee that she believed that the inquiry should not proceed with her testimony until the impasse of the funding was resolved.

The Public Protector, who filed her urgent application on Friday, also wants the ConCourt to rule on the committee going through her evidence without her legal team, in what she has labelled as an “illegal process“.

Section 194 chairperson Qubudile Dyantyi on Monday sought to clarify why the committee decided to hear an analysis of Mkhwebane’s testimony from the evidence leaders last month.

READ MORE: Mkhwebane not being denied right to lawyers, Section 194 Committee told

“There’s what seems to be a creative narrative about what would I have said at the end of the committee session. The context in which that must be explained is that this is an inquisitorial process as opposed to an [prosecutorial] process,” he said.

Dyantyi indicated that the evidence leaders in any case would have gone through Mkhwebane’s evidence regardless.

“That decision should not be misconstrued.”

He argued that the process would have benefitted Mkhwebane as she would be in a better space to prepare for when the inquiry eventually resumed.

Dyantyi also told the committee that the Public Protector would be afforded an opportunity to dispute the evidence leaders’ analysis in her closing arguments as well as when she is asked questions by MPs. 

Deliberations

Earlier, members of the committee discussed Mkhwebane’s request for a postponement amid her court bid before a decision was taken.

Democratic Alliance (DA) MP Kevin said his understanding on the ConCourt judgment on Mkhwebane’s entitlement for legal presentation meant that “we basically hit the pause button” because the Public Protector’s Office has ran out of money.

“So we are now resuming… it’s not a case of going back out for a new procurement process for new legal representation of anything like that,” he said.

African National Congress (ANC) MP Bheki Nkosi said he was of the view that the committee should allow Mkhwebane time to obtain legal representation since the R4 million was available so she could finish the final part of her evidence.

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“We can’t really ambush her,” Nkosi said.

United Democratic Movement (UDM) leader Bantu Holomisa supported the postponement and suggested that Mkhwebane must get new lawyers if her old legal team did not agree to return.

“Yes, we will of course wait for the ConCourt decision,” Holomisa said. “Let us go slow and make sure that we clean all this mess.”

Both African Transformation Movement (ATM) MP Vuyo Zungula and Economic Freedom Fighters (EFF) MP Omphile Maotwe agreed that the committee cannot continue without Mkhwebane’s legal representation.

Watch the proceedings below:

No interdict

But African Christian Democratic Party (ACDP) MP Marie Sukers expressed her concern over more delays given that millions have been spent.

Sukers also highlighted the Public Protector Office’s budget constraints.

“I think we have extended fairness to the Public Protector up until now. There is the issue of fairness to the South African taxpayer,” she said.

Following the deliberations, Dyantyi said MPs seemed to be unanimous about a postponement and resume next Monday.

He also pointed out that Mkhwebane was exercising her right by going to the ConCourt, but warned the litigation should not be construed as an interdict.

“There is no impediment for us not to proceed,” Dyantyi said.

“We are postponing today’s inquiry [and] we are giving the Public Protector seven days to gel legal representation. We are resuming next week Monday, with the new or old legal representative.”

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