Madonsela sees ‘no rational connection’ to appear at Mkhwebane’s hearing

Former Public Protector Thuli Madonsela says her testimony will not assist the Section 194 Committee in anyway so she sees no reason to appear before the parliamentary inquiry.

Proceedings into suspended Public Protector Busisiwe Mkhwebane’s fitness to hold office on Wednesday, where Parliament’s legal advisor, Fatima Ebrahim revealed that Madonsela had written to the committee.

This is after the committee last week resolved that Madonsela must be subpoenaed to testify at the inquiry.

Mkhwebane and her legal team want the former Public Protector to give evidence regarding the Vrede Dairy and CIEX-Absa matters.

‘Rational connection’

With a request for her to testify having been made in November last year, Ebrahim said Madonsela, in her letter, stated that she saw no need to appear before the committee.

 “I do not see the rational connection of the majority of the above questions and the Section 194[1] inquiry, which stems from judgments by courts, up to the Constitutional Court, regarding advocate Mkhwebane’s integrity flowing from court decisions about her honesty and professional competence flowing from court decisions regarding her comprehension of the public protector’s constitutional mandate,” the letter reads.

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According to Madonsela, the information sought by the committee was with the Public Protector’s office, thus, exempting her from testifying personally.

“Having left more than six years ago, it is the Public Protector that is best suited to respond to questions regarding its relationship with organs of the state in line with its constitutional position as an independent constitutional institution set up to hold other organs of the state accountable including the State Security Agency.”

Watch the proceedings below:

She pointed out that she would have been in a position to help a week after leaving office in 2016, “if efforts to work with the Public Protector team members to assure quality set of records were not rebuffed”.

But Mkhwebane, Madonsela said, “flatly forbade any contact between myself and the teams I had worked with when I requested her permission to do so”.

She added that Mkhwebane would have had an opportunity to ask institutional questions “with matters still fresh in my mind”, but her successor had refused to meet the week following her leaving office.

“The following week, she suddenly insisted that as I was no longer in office such was inappropriate to meet to augment my briefing with her and that I should have done this earlier.”

Madonsela further told the committee that her legal costs would need to be paid for by the Public Protector’s office should she be summonsed.

Relevant evidence

Ebrahim indicated that Madonsela’s letter was in accordance with what the evidence leaders informed the committee.

“The evidence leaders made an attempt to meet with advocate Madonsela. I think they may have had two meetings and one virtual meeting and they too were told that advocate Madonsela did not take any records when she left office.

“She did not have the email correspondence with her and that she did not remember much of the details of what had passed because of time,” she said.

Ebrahim also said that only evidence relevant to the grounds of misconduct and incompetence should be put before the inquiry.

“Evidence not so relevant that may be placed before the committee will be disregarded. So the committee must use its constitutional powers to summon a person to provide information that would be necessary for determination of the veracity of the charges in the motion.

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“Just remind the committee that the motion refers specifically to the former Public Protector in relation to the CIEX and Vrede matters.”

The committee, however, reaffirmed its decision that Madonsela should come to testify.

ANC MP Violet Siwela said she was of the view that Madonsela would assist the committee with its work.

“But we don’t need any other Public Protectors from other countries because I didn’t see the relevance of yesterday’s witness,” she said.

Meanwhile, DA MP Kevin Mileham asked whether Madonsela was entitled to legal representation when she appears before the committee.

In her response, Ebrahim explained Madonsela was only asking for legal assistance to collate documents and prepare a statement.

“She is not entitled to legal representation in this committee, but I don’t think that is what she is asking.”

Mkhwebane’s legal team not paid

At the start of Wednesday’s proceedings, Ebrahim informed the committee that Mkhwebane’s legal team has not yet been paid after invoices were submitted in December.

“Of course, invoices should be paid within 30 days so that was concerning,” the legal advisor said.

Ebrahim suggested that the committee should not get involved in the payment of service providers.

“There is no legal mandate for that. But in terms of the fact that this issue will definitely impact the committee if the Public Protector does not have her legal team so we thought it fit that we alert the CEO to determine what is causing the delay and what is the precise nature of this verification process that they have underway. We asked that they respond by Monday.”

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