Parliament, Friday, 9 June 2023 – The Committee for Section 194 Enquiry into Public Protector (PP) Adv Busisiwe Mkhwebane’s fitness to hold office today resolved to amend its directives to allow that committee members and evidence leaders may present written questions to the PP, which she may elect to answer orally or in writing.
This follows a day in which the committee was forced to postpone its hearings yet again – this time due to the PP rejecting the newly appointed office of the State Attorneys as her instructing attorneys to brief her counsel, citing conflict of interest. A few weeks ago, Chaane attorneys were briefed on her behalf, but Mr Hope Chaane has since been booked off sick indefinitely. Prior to that Seanego attorneys said it will no longer act on behalf of the PP for professional reasons that were not shared with the committee.
After a comprehensive briefing by Adv Isaac Chowe of the State Attorneys Office, it became apparent that Adv Mkhwebane had informed him that she rejected the brief given to them to appear on her behalf due to what she claimed a “patent conflict of interest”. The committee however heard from Mr Chowe that the State Attorney does at times act for opposing parties in the same matter. Adv Mkhwebane also informed the State Attorneys Office that litigation is ongoing on some of the matters before the committee.
After committee members had discussed Adv Chowe’s and Adv Mkhwebane’s input, they unanimously agreed to chart a new way forward as the committee has seen many delays due to matters relating to legal fees, appointing legal representatives and ill health. The last time the committee heard the PP’s testimony was on 31 March 2023.
Meanwhile, in response to the Public Protector’s request to recuse himself, committee Chairperson Mr Qubudile Dyantyi said he will consider it when it is submitted in the proper manner – a written formal application, as per his previous ruling. Adv Mkwhebane referred him to a letter sent by her personal attorneys minutes before the meeting convened, which requested him to provide reasons why he will not recuse himself.
In summing up the way forward, Mr Dyantyi indicated that the directives informing the committee’s work will be amended to accommodate this new way forward. Questions for Adv Mkhwebane will be collated and provided to the PP to respond. If she elects to respond orally, she will be given that opportunity and if she elects to respond in writing, the committee will allow time for that to be submitted under oath. During this time, the committee will also allow Adv Mkhwebane to submit anything further in writing that she wants the committee to take into consideration.
He indicated that should she however fail to respond to the questions, the committee will have no choice but to work on the information before it. This includes Part A and B of her affidavit provided to the committee as part of her audi rights to make representations before it arrives at a finding.
Mr Dyantyi said following this the report will be compiled, members will deliberate on the draft report and thereafter inputs made during those deliberation will be included. The draft report will then be shared with Adv Mkhwebane for comment to “provide her with a final audi”.
The final report will be table in the National Assembly. Chairperson Dyanti said that the committee still intends finalising the proceeding within its deadline, as per the last adopted programme of 28 July 2023. He also emphasised that the proceedings will have to be completed within the additional R4 million that the office of the Public Protector made available to Adv Mkhwebane, as this is all that is available. Adv Mkhwebane objected to the new way forward, requesting that her personal attorneys, RMT Attorneys, be briefed instead.
Mr Dyantyi said the amended directive will contain timelines as to when each new step of the process must be completed. The committee was established on 16 March 2021 to conduct a constitutional inquiry into the PP’s fitness to hold office. Committee documents can be found at Committee for Section 194 Enquiry - Parliament of South Africa
ISSUED BY THE PARLIAMENTARY COMMUNICATION SERVICES ON BEHALF OF THE CHAIRPERSON OF THE COMMITTEE FOR SECTION 194 ENQUIRY, MR QUBUDILE DYANTYI.
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