By Lehlohonolo Lehana.
The section 194 inquiry into Public Protector Busisiwe Mkhwebane’s fitness to hold office has resumed, following a long break linked to the cutting of state funding for her impeachment defense.
Chairperson Qubudile Dyantyi said the “higher offices” dealing with Mkhwebane’s funding is working on it and there is a “commitment” that the process must be concluded.
The Office of the Public Protector previously indicated it would cut its funding of Mkhwebane’s legal fees on 31 March, after spending R26.2 million on her impeachment litigation expenses.
Days after the Public Protector’s office said it had made an extra R4 million available for Mkhwebane’s impeachment inquiry defence, she launched an urgent Constitutional Court bid on Friday for untrammelled state funding of her lawyers.
In a letter to the committee, dated 4 May, Mkhwebane wrote: “Going forward, I need time to secure legal representation. I am not sure as to where will I get a legal team that will agree to your unrealistic and absurd terms dictating that the work to be undertaken must not exceed an amount of R4000 000.00 or a period of one month.”
She added: “It ought to be obvious that these are absurd and impossible conditions to impose given the nature and scope of all the outstanding items in the enquiry and the real possibility of having to engage either the previous or a new legal practitioner of my choice.”
“Please take note of the fact that should my previous legal team not be able or willing to return, the new legal team, if agreeable to your capped fee, will still have to peruse the 65 000-page record, excluding the transcript of the illegal ‘committee meeting’.
“This alone may take months. This would be so even if the other issues raised above regarding fairness were resolved, which is not the case at present. Either way, the conditions of service must be negotiated and agreed between PPSA, or any other appropriate organ of state, and my nominated legal team.”
Mkhwebane demands unlimited state funding of her Section 194 defence on the Constitutional Court’s earlier ruling that afforded her the right to be heard in her defence and “to be assisted by a legal practitioner or other expert of her choice”.
She said the failure to grant her such funding amounted to a “malicious breach of the said binding court order” and “contempt of court at worst”.
Dyantyi made it clear that the Inquiry has resumed so that it can “complete its work”: determining whether Mkhwebane should be found guilty of misconduct or incompetence. He says the section 194 committee has another 22 days of work to do before it completes its work.
Dyantyi on Monday sought to clarify why the committee decided to hear an analysis of Mkhwebane’s testimony from the evidence leaders last month.
“There”s what seems to be a creative narrative about what would I have said at the end of the committee session. The context in which that must be explained is that this is an inquisitorial process as opposed to an [prosecutorial] process,” he said.
Dyantyi indicated that the evidence leaders in any case would have gone through Mkhwebane’s evidence regardless.
“That decision should not be misconstrued.”
He argued that the process would have benefitted Mkhwebane as she would be in a better space to prepare for when the inquiry eventually resumed.
Dyantyi also told the committee that the Public Protector would be afforded an opportunity to dispute the evidence leaders’ analysis in her closing arguments as well as when she is asked questions by MPs.
Earlier, members of the committee discussed Mkhwebane’s request for a postponement amid her court bid before a decision was taken.
Democratic Alliance (DA) MP Kevin said his understanding on the ConCourt judgment on Mkhwebane’s entitlement for legal presentation meant that “we basically hit the pause button” because the Public Protector’s Office has ran out of money.
“So we are now resuming… it’s not a case of going back out for a new procurement process for new legal representation of anything like that,” he said.
African National Congress (ANC) MP Bheki Nkosi said he was of the view that the committee should allow Mkhwebane time to obtain legal representation since the R4 million was available so she could finish the final part of her evidence.
“We can’t really ambush her,” Nkosi said.
United Democratic Movement (UDM) leader Bantu Holomisa supported the postponement and suggested that Mkhwebane must get new lawyers if her old legal team did not agree to return.
“Yes, we will of course wait for the ConCourt decision, “Holomisa said. “Let us go slow and make sure that we clean all this mess.”
Both African Transformation Movement (ATM) MP Vuyo Zungula and Economic Freedom Fighters (EFF) MP Omphile Maotwe agreed that the committee cannot continue without Mkhwebane’s legal representation.
But African Christian Democratic Party (ACDP) MP Marie Sukers expressed her concern over more delays given that millions have been spent.
Sukers also highlighted the Public Protector Office’s budget constraints.
“I think we have extended fairness to the Public Protector up until now. There is the issue of fairness to the South African taxpayer,” she said.
Following the deliberations, Dyantyi said MPs seemed to be unanimous about a postponement and resume next Monday.
He also pointed out that Mkhwebane was exercising her right by going to the ConCourt, but warned the litigation should not be construed as an interdict.
“There is no impediment for us not to proceed,” Dyantyi said.
“We are postponing today’s inquiry [and] we are giving the Public Protector seven days to get legal representation. We are resuming next week Monday, with the new or old legal representative.”
Watch Live the proceedings in the video below:
Video Courtesy of Parliament.