Committee for Section 194 Enquiry notes Adv Mkhwebane’s nonadherence to deadlines

23 June 2023  

The Chairperson of the Committee for Section 194 Enquiry into Public Protector (PP) Adv Busisiwe Mkhwebane’s fitness to hold office has noted that Adv Mkhwebane has missed two deadlines this week in respect of the revised process that the committee has agreed to.

Committee Chairperson Mr Qubudile Dyantyi said Adv Mkhwebane was due to notify the committee by Monday, 19 June 2023 whether she would be responding to questions in writing or orally. Furthermore, Adv Mkhwebane was granted another opportunity, until yesterday (22 June), 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.

Mr Dyantyi said the abovementioned 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 Adv Mkhwebane.

According to Mr Dyantyi the committee has also noted correspondence by Adv 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 R4 Million made available to her and her indication that she intends moving a recusal application in respect of the Chairperson of he committee.

Communicating via her attorneys of record, she indicated that until such time as her attorneys are given time to familiarize 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 Adv Mkhwebane was never requested to make an input on the substance of the deadlines and the deadlines are not enforceable.

Mr Dyantyi further noted that Chaane Attorneys are back on brief as Adv Mkhwebane’s attorneys of record. Earlier their services were terminated by the Office of the Public Protector South Africa (PPSA) after a sick note which indicated that Mr Hope Chaane was booked off sick indefinitely. The services of the State Attorneys were then obtained at no cost, but were rejected by Adv Mkwhebane on the basis of a ‘patent conflict of interest’.

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 PPSA, 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 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 enquiry.

Mr Dyantyi stated that it is mischievous and egregious to complain about the insufficiency of the further R4 million 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 R4 Million 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 enquiry is now at the tail-end.  Despite all the obstacles which sometimes have the effect of side-tracking 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.”

Mr Dyantyi reiterated that the programme of the committee will thus continue as indicated previously, and that Adv Mkhwebane can expect written questions by 25 June 2023. “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.”

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

The committee was established on 16 March 2021 to conduct a constitutional inquiry into the PP’s fitness to hold office. The timelines on the wayforward are available on request. The committee is expected to finalise its work on 28 July 2023. Committee documents can be found at Committee for Section 194 Enquiry - Parliament of South Africa

Issued by Rajaa Azzakani, Media Officer, Parliament, 23 June 2023