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'Tainted' process to find Kholeka Gcaleka's deputy collapses

Andisiwe Makinana Political correspondent
Busisiwe Mkhwebane, a member of the justice portfolio committee, participated in the interviews for deputy public protector last month despite objections from the DA and concerns raised by the ANC of a potential conflict of interest. File photo.
Busisiwe Mkhwebane, a member of the justice portfolio committee, participated in the interviews for deputy public protector last month despite objections from the DA and concerns raised by the ANC of a potential conflict of interest. File photo.
Image: Lubabalo Lesolle

The process to find a new deputy public protector has collapsed and will have to be restarted after a parliamentary legal opinion found EFF MP Busisiwe Mkhwebane should have recused herself because of her connections to two candidates interviewed for the position.

Parliament legal advisers warned Mkhwebane’s relationship with the two candidates created a reasonable apprehension of bias.

Mkhwebane, who is a member of the justice portfolio committee, participated in the interviews for deputy public protector last month despite objections from the DA and concerns raised by the ANC of a potential conflict of interest.

Candidate  advocate Sekgame Tebeila is representing Mkhwebane pro bono in the African Court on Human and People’s Rights in a matter relating to her impeachment proceedings while another candidate, Ponatshego Mogaladi, is an executive manager in the office of the public protector and was charged and found guilty of gross misconduct during Mkhwebane’s tenure as public protector.

While a sanction of suspension and docking of salary for three months was recommended by the hearing chairperson, Mkhwebane wrote to Mogaladi informing her she was imposing a sanction of dismissal with immediate effect. Mogaladi approached the labour court which granted an order in her favour.

She later testified about an alleged culture of fear and intimidation in the public protector's office during the section 194 parliamentary inquiry into Mkhwebane's fitness for office.

“There can be no doubt the rendering of the pro bono services by  Tebeila at no cost amounts to a financial benefit which is accruing to  Mkhwebane,” read the legal advice given to the committee.

With regard to Mogaladi, the advice cited the court judgment which confirmed Mogaladi’s concerns about Mkhwebane and that there was a finding of victimisation, harassment and intimidation against Mogaladi, which had not been set aside by a court.

It concluded she should have recused herself from the process or in respect of interviews and deliberations regarding the two candidates.

During the committee’s meeting on Tuesday, Mkhwebane objected to the legal opinion, saying it does not prove bias.

“I’m objecting to the adoption of this legal opinion because it’s based on information which is still a subject of dispute before the court, as you know I was never given an opportunity to present my side of the story on such charges before the section 194 committee.”

Mkhwebane added that deciding who will be appointed the next deputy public protector is not her decision but a committee decision as the majority rules.

But her colleagues in the committee disagreed.

ANC MP Xola Nqola noted Mkhwebane is not disputing Tebeila is representing her in the African Court on Human and People’s Rights nor does she dispute Mogaladi took her to court over labour victimisation.

“These are not perceptions, they are concrete facts of what happened and what is happening,” said Nqola.

“I find her rejection of the legal opinion mischievous because the facts that are a genesis of why we are here are not in dispute.”

Nqola said it was irrelevant that Mkhwebane is not the sole determinant of the process.

He was the first to support a call by the DA’s Glynnis Breytenbach to restart the process.

“It is evident that continuing with this process from where we are now is risking a serious embarrassment to parliament,” said Nqola.

“I support the view that let the process be restarted.”

He said proceeding would taint the committee’s record.

“We have done proper work as this committee since 2019. We have a record we can’t at this point, at the end of our term, collapse.

“It is unfortunate we find ourselves in this situation but equally it should be a lesson that things of this nature should be attended to at the beginning of a process so we don’t proceed with a tainted process,” said Nqola.

Breytenbach proposed that the committee write a report for the house in which it will report it has failed to properly conduct the interviews, state the reasons and add that the process is fatally tainted and the committee cannot reasonably move forward with the matter and that parliament should consider appointing an ad hoc committee to redo the process.

The committee agreed to this proposal.

ANC MP Richard Dyantyi said it was also important for parliament to review its rules so they can explicitly say, “based on this conduct, this member cannot participate”.

TimesLIVE


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