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Tuesday, 02 April 2024 23:26

Parliament halts the process to appoint deputy public protector.

By Lehlohonolo Lehana.

The portfolio committee on justice and correctional services has halted its process to select the next Deputy Public Protector after a legal oponion found that Economic Freedom Fighters (EFF) member Busisiwe Mkhwebane failed to declare a conflict of interest with two of the candidates.

During Tuesday's meeting, parliamentary legal adviser Zingisa Zenani highlighted that the rules of the National Assembly provided that an MP make a declaration when there was a conflict of interest in line with the code of ethical conduct or withdraw when the matter is considered.

Zenani said Mkhwebane should have recused herself from the interviews either entirely and be replaced by another EFF MP or not participate when Shadrack Tebeile and Ponatshego Mogaladi are interviewed.

Tebeile, was representing her in the impeachment case in an African court, while Mogaladi was an executive manager in the office of the public protector.

"With regard to whether or not the relationship between Mkhwebane and the two candidates creates a perception of bias or conflict of interest, our answer to this is in the affirmative. Based on the facts presented, we submit, there is a reasonable apprehension of bias," she told the committee.

With regard to whether this warrants her recusal from the interviews in so 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 Mkhwebane is deriving a financial and personal benefit from the Tebeile relationship, and in the second instance — with regard to Mogaladi the findings of the Section 194 Inquiry, read with the [Labour Court] judgment, suggest strongly that any reasonable person will apprehend bias on the part of Mkhwebane given their history," the legal opinion further reads.

Zenani pointed out that the National Assembly rules did not compel MPs to recuse themselves, however, failure to do so could potentially result in a breach of the code.

She also explained the former public protector not recusing herself would leave the door open for "any aggrieved party" to approach the court.

"In the event that Mkhwebane, persists with her position that she is not conflicted, there is a possibility of a legal challenge being mounted. To avoid such challenge, this scenario would place an onerous task on the committee chairperson to ensure fairness throughout the process."

While the committee accepted the legal opinion, Mkhwebane disagreed.

"The conclusion which the legal advisor has decided on is very much not well researched and biased, "the EFF MP said.

The former public protector argued that none of the candidates raised objections about her participation in the interviews.

She also raised a question about why the Democratic Alliance (DA) brought up the issue of conflict of interest at the outset of the interviews, considering they had not raised it during the meeting where eight candidates where shortlisted.

"Deciding on who is the next deputy public protector is a committee decision, it is not my decision," Mkhwebane added.

DA MP Glynnis Breytenbach responded to Mkhwebane's comments.

"Mkhwebane is the person who has the conflict. She is the person who knows that two people in question and the rest of us don't so the only time we can raise it is when we are in possession of the CVs, having read them and seeing that she arrives on the morning to do the interviews, "Breytenbach said.

Meanwhile, the committee's chairperson, Bulelani Magwanishe confirmed that the process would start from scratch and a report would be sent to the National Assembly.

“We need to account in detail why we could not finish the process because failure to do that might amount to fruitless expenditure," he said.