Parliament, Thursday, 16 February 2023 – The Committee for Section 194 Enquiry into Public Protector (PP) Adv Busisiwe Mkhwebane’s fitness to hold office had to cut short its hearings earlier today again after it became clear that the PP’s legal team did not consult with the witness. The witness also now preferred to have statement/affidavit taken beforehand. This was the third postponement this week.

The witness, Ms Bianca Mvuyana, who had been subpoenaed to testify on behalf of the PP indicated in the meeting that she only consulted with the PP’s legal team yesterday. She confirmed that she initially, when approached by Parliament’s legal adviser, Ms Fatima Ebrahim who informed her of her right to depose an affidavit, she opted not to provide a statement or affidavit and indicated she would not attend voluntarily.

The committee heard that Ms Mvuyana was served with a subpoena to appear before it on 3 February 2023. She told the committee that she was approached by the legal team of the PP on Friday to make arrangements for Saturday to consult. The legal team of the PP did not honour the agreement.

Earlier in the day, Adv Dali Mpofu, told the committee that he only became aware of Ms Mvuyana’s preference for a statement last night and blamed parliamentary staff for giving a false impression that she did not want to make a statement. Ms Mvuyana, however, made it clear that she was informed by parliamentary support staff to the committee of her right to make an affidavit, but at the time she chose not do so.

Committee Chairperson Mr Qubudile Dyantyi made it clear that the hearings could continue without the written affidavit as oral evidence would be sufficient. He noted several times during the day that it remained the responsibility of the PP’s legal team to get statements from witnesses they call or are summoned on their behalf.

After her clarity the committee noted that it was due to the lack of effort from the PP’s legal team with their witness, that no statement was taken. Mr Dyantyi indicated that Ms Mvuyana had been on the list of witnesses supplied to the committee by the PP’s legal team in November last year. He further noted that even if she changed her mind to come forward voluntarily as a witness, the PP’s legal team still did not honour the agreement with her to consult on Saturday and take her statement. “It is not the responsibility of this committee or the evidence leaders”.

Mr Dyantyi added: “The committee must further note that this witness was subpoenaed for Monday, Wednesday and today. This is the last opportunity we have at this stage with the witness. The committee went out of its way to accede to the request by the PP’s legal team to summon this witness. The committee will now have to discuss whether to subpoena this witness again based on relevance. It does not mean that we automatically subpoena a witness again.”

Regarding the evidence of former deputy public protector, Adv Kevin Malunga, that was scheduled for tomorrow, the committee resolved that after it received the affidavit of Adv Malunga, it decided not to call him for oral evidence as he indicated that he was not directly involved in matters that relate to the charges before the committee.

Evidence leader, Adv Nazreen Bawa, SC, indicated that another PP staff member who will come before the committee next week, has also opted not to provide an affidavit. She also requested the committee to discuss the process by which the PP’s legal team will be obtaining a statement from the next witness, Adv Thuli Madonsela, former PP to avoid a repeat of today’s situation.

Mr Dyantyi said the committee will likely meet on Monday to discuss all these matters including the perception by some members that these are used as stalling tactics to delay or derail the work of the committee. The committee was established by the National Assembly (NA) on 16 March 2021 to conduct a constitutional inquiry into the Public Protector’s fitness to hold office and is expected to provide the NA with a report by the end of April 2023. Committee documents can be found at Committee for Section 194 Enquiry - Parliament of South Africa


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