Parliament, Tuesday, 14 March 2023 - The Western Cape Division of the High Court has, on Monday, reserved judgement on Advocate Busisiwe Mkhwebane’s application to suspend the proceedings of the Section 194 Committee, which is currently investigating her fitness to hold office.

The Public Protector approached the High Court to seek, amongst others, an order to:

  • review and set aside the decision of the Committee, taken on 27 October 2022, to dismiss her application for the postponement or adjournment of the enquiry and/or to declare its decision to continue with its proceedings as presently constituted, to be unlawful, invalid and/or unconstitutional; .
  • review and set aside the decision of the Section 194 Committee Chairperson, Mr Qubukile Dyantji’s, to refuse to recuse himself;
  • review and set aside the decision of another member of the Committee, Mr Kevin Mileham torefuse to recuse himself from the proceedings on the basis of his marriage to Ms Natasha Mazzone, MP who submitted the motion to institute an enquiry; and
  • set aside the Committee and/or the Speaker’s decisions in the form of ‘refusal and/or omissions to summon and/or subpoena’ at least one witness and recall three others (Mr Pillay, Mr Van Loggernberg and Ms Baloyi) who are, according to the Public Protector, required by her to testify and/or complete their evidence.

The Public Protector seeks further an order that Mr Dyanti and Mr Mileham be recused or removed and that witnesses be subpoened and/or recalled to testify.

In his answering affidavit, the Committee Chairperson, Mr Qubudile Dyantyi requested the court to dismiss the matter with costs, inclusive of three counsels, with Adv Mkhwebane to bear such costs, in whole or in part, in her personal capacity.

On the claim of bias, Mr Dyantyi said Advocate Mkhwebane’s application is an attempt to attack interlocutory rulings of the Chairperson or s194 Committee. He said this is one of a series of court challenges that she has launched to stymie the parliamentary process to hold her accountable.

On the setting aside of the review application, he argued that the Committee has the authority, under section 57 of the Constitution, the NA Rules, its Terms of Reference and Directives, to proceed with the enquiry, having dismissed Adv Mkhwebane’s application for the Chairperson’s recusal.

The Chairpeson said any delay in finalising the enquiry process, whether it leads to Adv Mkhwebane’s impeachment or vindication, goes against the public interest. He emphasized that the need to finalise the proceedings before the Public Protector’s term of office expires in October 2023 lends added significance to the completion of the s194 enquiry without delay.

Judgement is reserved.

ENQUIRIES: Moloto Mothapo