By Jan Gerber.
Suspended Public Protector Busisiwe Mkhwebane is threatening the chairperson of the Section 194 committee, Qubudile Dyantyi, with litigation if he doesn’t recuse himself, even before she has lodged the application for his recusal.
Mkhwebane has also railed against Dyantyi’s statement on her having missed two deadlines related to the inquiry and her refusal to appoint full legal representation, and said her husband’s allegations that a member of the committee solicited bribes from him is reason enough to stop the inquiry into her fitness for office.
On Friday, Dyantyi said Mkhwebane was due to notify the committee by last Monday whether she would be responding to questions in writing or orally.
Mkhwebane was also granted another opportunity to submit any additional affidavits or documentation in support of Part B of her statement to the committee by last Thursday.
Both these deadlines whooshed by without a response from Mkhwebane.
The committee, under pressure to complete its work, had to chart this path forward after Mkhwebane showed up without legal representation for the umpteenth time at the meeting of 9 June, when she was scheduled to continue her testimony.
“The committee resolved unanimously then that its members and evidence leaders would submit written questions to Mkhwebane, which she could answer in writing or orally if she so chose. She would also get the opportunity to present further statements to the committee.”
If she does not answer these questions by 6 July, the committee will proceed to determine whether she showed misconduct or incompetence warranting her removal based on the evidence already before it.
On 9 June, Mkhwebane was without legal representation because she refused being represented by the State Attorney, despite indicating in writing to the committee three days earlier that she would be amenable to the State Attorney briefing her counsel.
This was the latest manoeuvre by Mkhwebane, who last testified on 31 March, in a series of events that left her without legal representation.
Since 9 June, Chaane Attorneys has been reappointed as her attorneys of record, with Hope Chaane apparently having recovered from the illness which saw him “hospitalised indefinitely”, which led to Mkhwebane asking for an “indefinite postponement” of her impeachment proceedings.
However, in his statement, Dyantyi indicated that this didn’t resolve the issues with Mkhwebane’’s representation.
‘She [Mkhwebane] indicated that no progress can be made on this matter and she stated that the timelines are unrealistic. Chaane Attorneys further communicated that Adv Mkhwebane was never requested to make an input on the substance of the deadlines and the deadlines are not enforceable.”
Dyantyi indicated that it appears that, despite the efforts of the Office of the Public Protector, the Solicitor-General, the State Attorney in Pretoria, and the committee to secure legal assistance for Mkhwebane, neither she nor Chaane Attorneys appear to be willing to take the necessary steps to brief the counsel to deal with the outstanding merits of the impeachment inquiry.
In a statement of her own, Mkhwebane on Wednesday hit back at Dyantyi.
She said: The alleged ‘deadlines’ emanate from the illegally imposed new procedure which has been unilaterally introduced and imposed by the chairperson on 9 June 2023 when I appeared before the committee without any legal representation.
“Even then I told the committee that I rejected the proposed new procedure. It is unheard of to conduct a fact finding or disciplinary enquiry without oral evidence,” said Mkhwebane, who has avoided giving oral evidence since 31 March.
To do so after 25 witnesses, all of whom gave oral evidence in public, makes a mockery of a process which is meant to be fair and reasonable. These deadlines therefore have legal force and effect.”
Mkhwebane furthermore describes the deadlines as “unenforceable for being unreasonable”.
It is irrational to expect me to respond to such a crooked procedure but also to deal with so many questions in such a short space of time and at a time when the counsel of my choice is not on brief,” said Mkhwebane, who refused to brief counsel.
Mkhwebane said her attorneys can’t be expected to brief her counsel “in a situation where they themselves are totally in the dark about the contents of the record which is more than 60 000-pages long”.
The counsel Mkhwebane wants is the same counsel that represented her previously in the proceedings, advocate Dali Mpofu SC, and his juniors, advocates Bright Shabalala and Hangwi Matlhape. The attorneys who previously represented her, Seanego Attorneys, refused to be reappointed due to “professional reasons”, which they and Mkhwebane refused to divulge to the committee.
While Mkhwebane hasn’t appointed counsel to deal with the questions she is facing, she said it is now her “intention to request [her] legal representation to accept a limited brief to bring and argue the urgent application for the recusal of Dyantyi”.
In late May, Mkhwebane’s husband, David Skosana, laid a charge with the police, alleging that the late ANC MP Tina Joemat-Pettersson solicited R200 000 each for herself, Dyantyi and ANC chief whip Pemmy Majodina to make the inquiry go away.