Parliament, Wednesday, 3 April 2024 – The Portfolio Committee on Justice and Correctional Services today adopted its report on the appointment of a new Deputy Public Protector (DPP), wherein it recommended that the process should start afresh, as the participation of one of its member’s irretrievably tainted the process.

Committee Chairperson Mr Bulelani Magwanishe said the recommendations follows a legal opinion on whether Adv Busisiwe Mkhwebane should have recused herself from the process, as she had disciplined one of the candidates during her term as the Public Protector (PP) and benefited from another candidate, who approached her to act pro bono on her behalf in a legal matter.

The committee interviewed seven candidates last month – Adv AV Mavhidula, Adv S Tebeile, Ms P Mokgaladi, Adv S Moleshe, Ms L Mkhize, Adv TS Thipanyane and Adv TA Bunguzana. Mr Magwanishe said at the time of the interviews that they had been delayed due to an objection made by some of committee members about Adv Mkhwebane’s inclusion on the interview panel on the grounds of an alleged conflict of interest.

The committee heard that Adv Tebeile is appearing pro bono for Adv Mkhwebane in a matter before the African Court on Human and People’s Rights. Also, during her tenure as PP, Adv Mkhwebane did not accept the outcome of the disciplinary proceeding against Ms Mokgaladi, which recommended that she be suspended with no salary for three months. Instead, Adv Mkhwebane asked Ms Mokgaladi to provide reasons why her employment should not be terminated. The labour court later overturned Adv Mkhwebane’s decision.

However, Adv Mkhwebane continued to insist on being part of the process. The committee then requested a comprehensive legal opinion and continued with the interviews.

Yesterday, Ms Zingisa Zenani from Parliament’s Constitutional and Legal Services Office (CLSO) presented the legal opinion to the committee. She said that, based on the facts presented, there is a reasonable apprehension of bias. “With regard to whether this warrants her recusal from the interviews as far as the two candidates are concerned, we submit that it does, based on the test for a reasonable apprehension of bias. Our conclusion stems from, in the first instance, the fact that Adv Mkhwebane is currently deriving a financial and personal benefit from the Tebeila relationship, and in the second instance – regarding Ms Mogaladi – the findings of the Section 194 Enquiry, read with the Tlhotlhalemaje J judgement, suggest strongly that any reasonable person will apprehend bias on the part of Adv Mkhwebane, given their history.”

The CLSO also warned of the possibility of a legal challenge being mounted if the panel continued with the process in its current form.

The committee agreed with the legal opinion that, in the circumstances, the Code of Ethical Conduct and Disclosure of Members’ Interests for Assembly and Permanent Council Members and the applicable case law place an obligation on the member concerned to recuse themselves.

The committee agreed with the legal opinion and said it is irrelevant that Adv Mkhwebane is not the sole decision-maker in the process, as both the NA Rules and the Code address her personal or private (not political) interests in the matter at hand. It further stated that although the National Assembly Rules do not provide for a process to compel a member to recuse themselves, the committee notes that should a member refuse to recuse themselves, any party who feels aggrieved by such decision will have a right to approach a court of law to have the dispute decided.

The committee was also clear that Adv Mkhwebane should have declared these relationships at the start of the process – during nominations for shortlisted candidates – and not merely at the commencement of the interviews. Adv Mkhwebane rejected the legal opinion.

“The Committee believes that Hon. Mkhwebane’s participation has irretrievably tainted its process. In the circumstances, the Committee does not believe that it would be fair for it to continue by proceeding to deliberate on the merits of the candidates it has interviewed. This is so regardless of whether Hon. Mkhwebane recuses herself now or not. Further, in the Committee’s view, to proceed would attract controversy to the appointment, and risk litigation, both of which are not desirable,” the report reads.

Mr Magwanishe said that in its recommendations to the NA, the committee indicated that it understands that there is very little time before the sixth Parliament rises ahead of the general election, which takes place on 29 May 2024, but given the circumstances set out in this report, the committee recommends that the House resolve to begin again the process to nominate a candidate for appointment as Deputy Public Protector.


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