Busisiwe Mkhwebane 'misses two section 194 committee deadlines'

Suspended public protector Busisiwe Mkhwebane this week missed two deadlines in respect of a revised process the section 194 committee inquiry into her fitness to hold office has agreed to, its chair Qubudile Dyantyi said.

“Advocate Mkhwebane was due to notify the committee by Monday whether she would respond to questions in writing or orally. Furthermore, advocate Mkhwebane was granted another opportunity, until [Thursday], to submit any additional affidavits or documentation in support of Part B of her statement or in relation to the evidence leaders’ presentation to the committee on Part A of her statement, to the extent that there is a part that was not addressed in her oral evidence or written statement,” said parliamentary communication services spokesperson Rajaa Azzakani.

“Mr Dyantyi said the above-mentioned timelines form part of the proposed new way forward that was agreed to by the committee in a meeting earlier this month. This also led to Mr Dyantyi issuing an addendum to the directives which govern the committee’s work and that was communicated to advocate Mkhwebane.

“According to Mr Dyantyi the committee has also noted correspondence by advocate Mkhwebane in which she makes several demands in respect of further handling of the process. This includes issues relating to legal representation, insufficiency of the additional R4m made available to her and her indication that she intends moving a recusal application in respect of the chairperson of the committee.

“Communicating via her attorneys of record, she indicated that until such time as her attorneys are given time to familiarise themselves with the record and the issue of who will bear the responsibility to pay any additional legal costs is attended to, counsel cannot be briefed to deal with the merits of the motion. She indicated that no progress can be made on this matter and she stated that the timelines are unrealistic. Chaane Attorneys further communicated that advocate Mkhwebane was never requested to make an input on the substance of the deadlines and the deadlines are not enforceable,” Azzakani said.

Earlier, Chaane Attorneys' services were terminated by the public protector's office and state attorneys obtained. However Mkhwebane rejected their services due to a “patent conflict of interest”. Chaane Attorneys have since been rebriefed in the matter.

“Mr Dyantyi indicated in his response to issues raised by Adv Mkhwebane in her personal capacity as well as the letters by Chaane Attorneys, that it appears that, despite the efforts of the [public protector's office], the solicitor-general, the state attorney in Pretoria, and the committee to secure legal assistance for Adv Mkhwebane (including assisting her to secure additional funds, to appoint Chaane Attorneys and agreeing to the requests of Adv [Dali] Mpofu and his team for higher fees), neither her 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,” Azzakani said.

“Mr Dyantyi stated that it is mischievous and egregious to complain about the insufficiency of the further R4m provided by the PPSA when no efforts have been made to reduce expenditure and, quite to the contrary, it appears that wasteful costs are incurred in the form of perusal fees in circumstances where such is unnecessary as her counsel is steeped in the matter. He went on to say that there is no evidence presented that demonstrates that this substantial amount is insufficient to complete the programme.

“I must reiterate that one cannot lose sight of the fact that the R4m must be viewed in the broader context of the significant amounts already made available to your client in this matter and bearing in mind that the inquiry is now at the tail-end. Despite all the obstacles which sometimes have the effect of sidetracking the committee, at the heart of this process is that the committee is duty-bound to hold your client to account vis-à-vis the serious charges in the motion. This is not a task to be taken lightly and, I refuse to conduct the proceedings in a manner which ignores that parliament has a constitutional function that it must perform in relation to the motion,” said Dyantyi.

He reiterated that the programme of the committee will thus continue as indicated previously, and that Mkhwebane can expect written questions by Sunday.

“She is once again urged to ensure that she avails the necessary resources at her disposal to assist her. The committee will be continuing with its proceedings irrespective of your client’s stance. The participation of your client is therefore strongly encouraged, but I cannot reasonably be expected to make any more efforts to assist your client to participate beyond what I have already done. I have no control over how she exercises her choice in the instructions to her legal team. If she has not given such instructions that is entirely her decision,” he said.

In respect of the recusal application Mkhwebane intends to submit, Dyantyi said he will consider it when it is submitted as indicated earlier.

The committee was established on March 16 2021 and is expected to finalise its work on July 28.

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