Parliament, Friday, 7 July 2023 – The Chairperson of the Committee for Section 194 Enquiry into Public Protector (PP) Adv Busisiwe Mkhwebane’s fitness to hold office has noted with grave concern that Adv Mkhwebane missed another important deadline yesterday – this time with her response to written questions posed by Members and evidence leaders.

This is not the first deadline missed by Adv Mkhwebane since the committee was forced to forge a new path after various challenges and delays arose in relation to the PP’s legal assistance, despite the fact that the PPSA made another R4 million available in additional funds and the PP was granted permissionto retain all three of her counsel at increased fees.

Committee Chairperson Mr Qubudile Dyantyi said Adv Mkhwebane was due to notify the committee by Monday, 19 June 2023 whether she would be responding to questions in writing or orally. Adv Mkhwebane was granted another opportunity, until 22 June, to submit any additional affidavits or documentation in support of Part B of her statement or in relation to the evidence leaders’ presentation to the committee on Part A of her statement to the extent that there is a part that was not addressed in her oral evidence or written statement. She did not meet the deadline of 19 June and did not submit any additional information for the committee’s consideration.

Mr Dyantyi further said on 25 June 2023 two sets of questions – one by Members of the committee and one by evidence leaders – were sent to Chaane Attorneys, Adv Mkhwebane’s attorneys of record. “The due date for responding to these questions was yesterday, 6 July 2023. It is unfortunate that the PP has decided to disregard this important process by not responding to the questions and thereby disrespecting the committee process as was agreed to by all participating Members on 9 June 2023.”

He also stated that the next deadline is the end of today, whereby Adv Mkhwebane must submit written notice to the committee secretariat indicating if she will make a closing statement and the format in which it will be made. “Even though the PP has missed several deadlines, this is another opportunity for her to appraise the committee of her version of the events in terms of the motion before the committee. I would urge PP to take this opportunity to take the public into confidence by utilising the platform being afforded to her. Just as much as the committee has a constitutional responsibility to complete its mandate, so too must the PP to account to Parliament via the committee in this instance.”

Mr Dyantyi went on to say that Adv Mkhwebane and her attorneys have indicated that they will not be bound by what they termed illegal deadlines set by the committee. They have indicated that counsel has not been briefed to deal with the merits of the matter as Chaane Attorneys is still in the process of familiarising themselves with the record. To this end, Chaane has said that some R500 000 or more has already been spent of the R4 million for this purpose.

In his official response to the letter from Chaane Attorneys, Mr Dyantyi points out from 23 May 2023 until 4 June 2023 negotiations were underway for the re-appointment of Adv Mpofu and the two junior counsel. “There was no reason as to why this time could not have been used productively whilst negotiations with counsel were underway. However, it appears that none of the initial 13 days, prior to you taking ill on 5 June 2023, were used for the purposes of familiarising yourself with the record. Thereafter you were booked off sick indefinitely and the committee was informed that no one at Chaane Attorneys had the ability to act on the matter.

“As you know, this led to the termination of your brief which, after objection from the PP and your sudden recovery, was reinstated on 14 June 2023 (a full 20 days ago excluding today). Therefore, Chaane Attorneys has been on brief in this matter for a total of 33 days already and still it appears that Adv Mkhwebane has not instructed you to brief her legal representative of choice, nor have you been able to sufficiently familiarise yourself with the record ostensibly for the purposes of doing so.”

Mr Dyantyi went on to say that it is very concerning that Chaane Attorneys has taken the position that they require a minimum of one more month to familiarise themselves with the record and that too is dependent on the “total availability of counsel” during this period before you will be able to brief counsel on the merits.

“The precise purpose of this extended unlimited perusal for this long period and how it was arrived at is of course undisclosed, especially since approximately R500 000 or more of the allocated R4 million has, according to your letter, already been utilised (which I estimate to be minimum 20 full days of services already rendered by Chaane Attorneys). It would therefore appear that an instruction to brief counsel on the merits may only be forthcoming from your client once the R4 million has been exhausted (or substantially spent) on unnecessary perusal fees coupled with the costs of a limited brief for purposes of bringing a recusal application. This appears to be deliberately geared to create an inevitable and untenable situation where the committee and the National Assembly will not be able to fulfil its constitutional obligations, despite the time and resources ploughed into this matter.”

Speaking on the request of the PP to bring a recusal application against him, Mr Dyantyi said that the PP has been informed on several occasions that she may bring such an application in writing and that he will deal with it once it is filed. However, despite the allegations being in the public domain for approximately five weeks already and the PP indicating her intention, on several occasions, to make such an application, she has yet to submit same for his consideration.

In closing, Mr Dyantyi made it clear that the committee will continue in terms of the timelines set out. The committee was established on 16 March 2021 to conduct a constitutional enquiry into the PP’s fitness to hold office. The timelines on the way forward are available on request. The committee is expected to finalise its work on 28 July 2023. Committee documents can be found at Committee for Section 194 Enquiry - Parliament of South Africa


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