By Jan Gerber.
The chairperson of the Section 194 Committee, Qubudile Dyantyi, has rejected suspended Public Protector Busisiwe Mkhwebane’s second application that he recuses himself from presiding over the inquiry into her fitness for office.
The committee is inquiring whether Mkhwebane displayed misconduct or incompetence warranting her removal from office.
Mkhwebane’s application has its genesis in allegations by her husband, David Skosana, that the late ANC MP Tina Joemat-Pettersson solicited bribes of R200 000 each for herself, Dyantyi and ANC chief whip Pemmy Majodina.
Skosana opened a complaint with the police, while Mkhwebane did so with Parliament’s ethics committee.
Dyantyi and Majodina have publicly denied the allegations. Joemat-Pettersson died on 5 June. Her death is the subject of an inquest.
After Mkhwebane, backed by the EFF, the United Democratic Movement and the African Transformation Movement, insisted on Dyantyi’s recusal at a meeting of the Section 194 committee last month, he indicated that he would consider a written recusal application, as required by the committee’s directives.
On 12 July, Mkhwebane filed her formal application for his recusal, compiled by her counsel, advocate Dali Mpofu SC, and his juniors, advocates Bright Shabalala and Hangwi Matlhape, a day before the Constitutional Court upheld her suspension by President Cyril Ramaphosa and dismissed her challenge to the impeachment proceedings.
Mkhwebane presented seven grounds for Dyantyi’s recusal:
- Allegations of bribery, corruption and/or extortion against the presiding officer;
- The chairperson is a subject of a pending investigations by Parliament’s ethics committee (sic);
- Chairperson is a subject of a pending police investigations (sic); Disparaging media statements and interviews;
- Committee and/or chairperson is proceeding despite Public Protector’s lack of legal representation;
- The role of Joemat-Pettersson as a member of the committee; and
- The role of Majodina as the ANC chief whip.
In her application, Mkhwebane argued that it is immaterial whether actual bias from Dyantyi exists, and that questioning her and her legal team’s motives in bringing a recusal application is also grounds for recusal.
After initially indicating that he would respond to Mkhwebane’s application by last Friday, Dyantyi did so on Monday.
“After careful consideration of the 2nd Recusal Application, I have taken the decision not to recuse myself as the Chairperson or as a member of the Committee,” he stated.
Dyantyi said he did so on the basis that he “categorically and vehemently deny” that he had ever, in connection with the Section 194 process:
- “Bribed, sought to bribe or otherwise solicit a bribe through Ms Joemat-Pettersson or any third party from the PP or any other person;
- “Sought to extort anything from any person or subjected any person to pressure or threats to induce that person to do or refrain from doing, in return for a patrimonial or non-patrimonial advantage, or for any other reason whatsoever;
- “Received any personal or financial benefit or sought to receive such benefit or that [he has] any personal or financial interest in the outcome of the Enquiry; or
- “Acted in any manner that was unfair to the PP.”
Dyantyi further stated that he believed the “evidence” tendered by Mkhwebane did not “support that there is any prima facie proof of the allegations in respect of myself but rather raises further questions”.
“I have maintained an open mind throughout the Enquiry and reached no predetermined conclusions in the assessment of the charges in the Motion. On the contrary I have actively engaged with the evidence and will continue to apply my mind in a fair, unbiased and rational manner when concluding on findings and making recommendations to the NA,” Dyantyi stated.
“Furthermore, I am acutely aware of my duty to ensure that the process is reasonable and procedurally fair. I have always acted in good faith to ensure that the requirement of fairness is balanced against the Committee’s Constitutional duty to perform its work diligently, without delay and within a reasonable timeframe.”
In September last year, Mkhwebane brought another application for Dyantyi’s recusal, along with an application for the recusal of DA MP Kevin Mileham. She claimed that Dyantyi had been biased against her and her legal team, and had allowed the process to be procedurally unfair.
Dyantyi refused to recuse himself then too.
“I do so in the belief that the Public Protector has failed to establish any grounds upon which it can be said that I am biased or that my conduct may give rise to an apprehension of bias,” he stated on 17 October.
Mkhwebane wanted Mileham to recuse himself because the motion that led to the impeachment proceedings was moved by his wife, DA MP Natasha Mazzone, in her capacity as DA chief whip at the time.
Even though the motion was adopted by the National Assembly – thus becoming a motion of the National Assembly – Mkhwebane and her legal team continue to refer to it as the “Mazzone motion” and refer to Mazzone as the “complainant”.
Mileham, too, refused to recuse himself.
Mkhwebane subsequently challenged their decisions in court, but the Western Cape High Court dismissed her application. She is appealing to the Supreme Court of Appeal, and took to Twitter to raise funds for this litigation.
Mkhwebane also brought an unsuccessful application against the evidence leaders, advocates Nazreen Bawa SC and Ncumisa Mayosi.
Mkhwebane’s term of office ends on 14 October.