By Lehlohonolo Lehana.
The section 194 inquiry into Public Protector Busisiwe Mkhwebane’s fitness to hold office continued this morning without her legal representatives, after the Office of the Public Protector indicated it would stop paying for her lawyers on 31 March.
Mkhwebane indicated on Friday that she will continue to appear before the committee. But she added the following qualification: “But there won’t be anything which I will be saying because I wouldn’t have a legal representation and the Constitutional Court judgment is very clear: legal representation of my choice.”
The Constitutional Court ruled in February last year that Mkhwebane is entitled to full legal representation for the impeachment proceedings. It did not, however, indicate who should foot the bill.
This has left the committee, which is looking into her fitness to hold office, with a dilemma since Mkhwebane was entitled to full legal representation in the hearings.
During Monday’s proceedings, the committee’s chairperson Qubudile Dyantyi said they would continue to do its work, with the evidence leaders briefing the committee on the evidence heard at the inquiry at this stage, much to the dismay of Mkhwebane.
The public protector had protested against evidence leader Nazreen Bawa leading evidence about CR17 court records and argued that it violated her rights because her legal team was absent.
“This is illegal, unlawful, and unethical,” she told the committee.
She then asked to be excused and left the meeting.
After an hour lunch-break, parliamentary legal advisor Fatima Ebrahim reminded the committee that members decided to have evidence leaders present at the inquiry from the beginning of the hearings.
It was felt that it would a better approach if we had the support of evidence leaders. We were at pains to advise that this is not a quasi-judicial process, and that the use of evidence leaders should not be seen to be an admission on our part that this is a trial of any kind or a criminal process or anything akin to that.
“Therefore, we specifically stated that the nature of the process is inquisitorial,” she said.
Ebrahim pointed out that it was made clear that it was the committee that must take decisions in the inquiry rather than the evidence leaders.
“The presentation of evidence can take various formats… We tend to think the presentation of evidence being one, where witnesses are being called. But that is just one way that evidence can be presented.”
She said it would be impossible to lead all the written evidence through witnesses because they go “into thousands of pages”.
On the question of whether Mkhwebane would be prejudiced if the evidence leaders lead evidence without her legal team, Ebrahim indicated that the public protector would have at least two opportunities to respond to the evidence.
“The first is the intention that the public protector herself must appear before [the committee] and answer the questions of members and the evidence leaders if they have any questions to put to her.
“The process of the evidence leaders now seeks to equip members to ask those questions… That’s anything that may be disputed, any gaps or contradictions that may arise as a result of the evidence that is being presented can be dealt with.
The second opportunity that the public protector will be given is to comment on the draft report and the purpose of that was in case the committee missed or misunderstood anything [so] there should be another final opportunity for the public protector to place any corrections or anything she wanted the committee to consider further on record,”she said.
She added that it would be ideal if Mkhwebane’s legal team was present, but highlighted that the committee also has a duty to finish its work “in a reasonable timeframe”.
Ebrahim further dismissed the suggestion Mkhwebane’s right to full legal representation was being denied by the committee proceeding to deal with the evidence.
“There is another part of the process which is the committee getting to grips with all of the evidence before it and certainly, when the public protector returns with her legal team should they wish to engage with any of these issues, they must be given the opportunity to do so.”
Dyantyi said “work is continuing” on Mkhwebane’s legal fees and the committee will resume at 10:00 tomorrow.
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Video Courtesy of Parliament.