Mkhwebane’s last hope against parliamentary process lies in the court

With Section 194 inquiry chair Qubudile Dyantyi having ruled against an application by suspended public protector advocate Busisiwe Mkhwebane for his recusal from the inquiry in response to allegations of bias, a legal expert yesterday said the only option open to Mkhwebane would be to approach the high court and seek an interim order to stop the parliamentary proceedings.

According to Accountability Now director advocate Paul Hoffman, should a court interdict be granted, it would delay committee hearings into the fitness of Mkhwebane to hold office – a scenario which appeared highly slim.

Similarly Democratic Alliance MP Kevin Mileham has written to Dyantyi, saying he had “no intention of recusing myself from these proceedings”.

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“In her application, the public protector suggests that I have an ‘inherent bias’, given the nature of my relationship with the complainant. It is indeed, common cause that I am married to MP Natasha Mazzone,” said Mileham.

“As an MP, I have on three separate occasions, sworn an oath to be faithful to the Republic of South Africa and to obey, respect and uphold the constitution and all other laws of the republic.

‘I have decided not to recuse myself’

“I reject the idea that I am ‘a member of a member’ or that I am unable to think independently and impartially on any matter.

“I do not take instruction from Honourable Mazzone in regard to this matter and we do not discuss it in any detail whatsoever.

“The recusal application goes on to note that I am hostile and condescending towards the legal representative of the public protector. I point out that I have been unfailingly polite to Mr [Dali] Mpofu, who has in turn ranted, shouted and told me: ‘shut up, Mileham!’.”

In a scathing reply to advocate Mpofu, representing Mkhwebane, Dyantyi said: “Taking the facts into account and having taken time to carefully consider the public protector’s application, I have decided not to recuse myself.

“I do so in the belief that the public protector has failed to establish any grounds upon which it can be said that I am biased or that my conduct may give rise to an apprehension of bias.

“I am satisfied that there is no basis for me to stop discharging the important public function with which I have been charged.

“I remain open-minded in my conduct of the proceedings and can say with certainty that I have not reached any firm conclusions in relation to any of the content of the motion.

“I have no preconceived notions as to the outcome of the committee’s work. Indeed, I have emphasised that this must be the position adopted by all members until the conclusion of the hearings.

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“I have listened to the evidence and I am acutely aware that the public protector has not as yet led her evidence – as has been indicated she intends doing – and has not yet had the opportunity to provide her oral evidence. Nor has the public protector – save for a handful of questions – answered members’ questions as yet.”

Dyantyi said the committee’s process was fair.

“The public protector has been aware of the contents of the motion for a significant period of time. Prior to the commencement of the hearings, the public protector was afforded the opportunity to make written representations to the committee, but declined to do so.

“All in all, I have no doubt that I have been fair, reasonable, firm and balanced in seeking to ensure that the committee discharges its fundamental constitutional function. There is therefore no substantive merit in the recusal application,” said Dyantyi.

– brians@citizen.co.za