Parliament, Tuesday, 7 March 2023 – The Committee for Section 194 Enquiry into Public Protector (PP) Adv Busisiwe Mkhwebane’s fitness to hold office, resolved today to refuse a request for the postponement of the testimony of Adv Mkhwebane. The PP is due to testify next Wednesday, 15 March.
This follows a written request by the PP’s legal team for a further extension in providing her statement to the committee. Chairperson of the committee, Mr Qubudile Dyantyi’s previously agreed to extend the original deadline from 7 March to 9 March, and 14 March by allowing the PP to submit her statement in two parts. The PP has since requested an extension to 20 March 2023. The PP further requested that her testimony be moved to 27 March 2023 instead of 15 March 2023 as per the programme.
In summarizing the committee discussions, Mr Dyantyi said that the committee had already granted a postponement for the PP’s affidavit, but would allow additional time for preparation of the statement without moving the date for her appearance. He said: “The committee has taken into account that postponement due to the testimony of Prof Madonsela being finalized today. Our programme at this stage is to finalise the evidence on 30 March. We had already granted a two-day postponement, factoring in Prof Madonsela’s testimony. We are granting a further postponement until 14 March 2023 to supply the affidavit.
“In terms of the Directives within which the committee operates, it does not specify that an affidavit must precede the testimony. Members are of the firm view that the process is not open-ended,” Mr Dyantyi said.
“The committee had further regard to the letter it received from the PPSA regarding the financial difficulties it finds itself in. According to the letter, due to financial constraints, the PPSA can only pay legal fees for the PP in respect of the hearings until the end of the financial year, being 31 March.
“The committee is of the view that it cannot put the PPSA under further strain where they could be incurring irregular expenditure. We will be the very people to question them on this,” added Mr Dyantyi.
Regarding the PP’s request to call further witnesses, the committee resolved that at this stage it will accept statements from the witnesses provided from the PP’s legal team and then makes a decision on the relevance and necessity of calling for oral evidence.
Earlier in the day, the committee heard that nothing in law renders the affidavit of the former PP, Prof Thuli Madonsela, illegal or invalid as was purported by the PP’s legal team yesterday. Adv Ncumisa Mayosi, one of the evidence leaders, read out both the Justices of the Peace and Commissioner of Oaths Act and the Regulations governing it, to verify the sections that were quoted yesterday bringing to question the legality or validity of Prof Madonsela’s affidavit.
Adv Dali Mpofu, SC, yesterday questioned for hours the legality or validity of the affidavit by Prof Madonsela that was provided to the committee on 28 February 2023. Adv Mpofu said in terms of the Justices of the Peace and Commissioner of Oaths Act and the Regulations, the legality of the “document” as he called it, was brought into question as not each page was initialed. Prof Thuli Madonsela referred the committee to a Western Cape High Court judgement in which the court found that it is a practice and not a legal requirement for the validity of an affidavit.
Prof Madonsela once again denied that she issued a provisional report in relation to the Vrede Dairy investigation, as was purported. The copy that was shown in the meeting bears her details at the end of the report but no signature.
Mr Dyantyi concluded that the hearings will resume next Wednesday, 15 March 2023 with the expected testimony of Adv Mkhwebane. 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
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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