‘Good luck, maybe we’ll see you again’: Dali Mpofu withdraws from representing Mkhwebane

Advocate Dali Mpofu has withdrawn from representing suspended Public Protector, Busisiwe Mkhwebane, in the Section 194 committee inquiry.

This comes after Mkhwebane’s postponement application was rejected by Section 194 committee chair Qubudile Dyantyi on Thursday.

“As I indicated earlier, the decision really does not come as a surprise,” Mpofu said.

ALSO READ: Mkhwebane impeachment: Public Protector to challenge recusal decision – Dali Mpofu

The advocate informed the committee that his mandate has come to an end and asked to be excused.

Mpofu said the legal team are not able to take further part in “any of the illegal activities” of the committee.

“Any event beyond the application, even breathing, would be the illegal activities of this committee. So, I am afraid then, as far as the legal team is concerned, this is as far as the legal team can take it. And good luck, maybe we’ll see you again or maybe not.”

The advocate added that Mkhwebane will “speak for herself” on whether she will continue to participate in the inquiry.

Postponement application

Earlier in the proceedings on Thursday, Mpofu informed the committee that Mkhwebane plans to challenge the dismissal of her recusal application by Dyantyi.

As a result, the Public Protector sought a postponement of the inquiry’s proceedings pending a court ruling on her review application.

Mkhwebane wanted Dyantyi and Democratic Alliance (DA) MP Kevin Mileham to recuse themselves based on a number of reasons, but her application was unsuccessful.

Watch the proceedings below:

DA MP Mimmy Gondwe said it appeared that Mkhwebane may be employing “Stalingrad tactics” since the Section 194 committee has sat through a number of applications that have prevented the inquiry from proceeding with its work.

“In his opening remarks, Advocate Mpofu stated that no one wants the inquiry to proceed as much as the Public Protector does, but why then we, as the committee, have had to sit through three recusal applications and today we are sitting through an adjournment application?” Gondwe asked.

“The ordinary person on the street would think the Public Protector doesn’t want the inquiry to proceed and her side of the story to be heard,” the DA MP said.

She also questioned whether the committee would conclude before Mkhwebane’s term ended, which is expected to be in October 2023.

‘Kangaroo justice’

Responding to Gondwe, Mpofu explained that the reason why the committee has to sit through all the applications is “because of something which is rare, called fairness”.

“The Public Protector wants a lawful process to proceed. She can’t be keen to have an illegal process proceeding, that would be madness. So what she wants to happen is a process that conforms with [the committee’s] own rules [of] fairness,” he said.

“Unfortunately, the law, not me, provides for such a thing called recusal because the law seeks to protect us from kangaroo justice.”

RELATED: Mkhwebane impeachment: Section 194 inquiry chair ‘avoided laying complaint against Mpofu after threats’

On the matter of Mkhwebane’s term, Mpofu argued that the target for the inquiry must be a fair process rather than “just running into a cliff” by chasing a certain timeframe.

“If [the committee can complete its work within] six months or six minutes so be it, but we can’t be chasing days or weeks or months… we must chase justice.”

The advocate further told the committee that the Public Protector was “more than ready” to give her side of the story, adding they submitted a list of Mkhwebane’s witnesses in August.

“She will give evidence once all the unfairness and bias has been cleared.”

Contempt of court

Following the lunch break, parliamentary legal advisor Fatima Ebrahim informed MPs that it was up to the committee to decide whether to grant the postponement, but must do so in a rational manner.

Ebrahim said there is no legal impediment for the committee to conduct its work in the absence of a court interdict.

“There is in fact no risk of contempt of court as there is no court order presently restraining proceedings,” she said.

“Essentially what the committee must determine is the risk of continuing vis-à-vis the risk that the court sets aside the recusal application. We may adjourn for an unspecified time and await the outcome of court processes [which] speaks to that rationally component that I mentioned.”

READ MORE: Inquiry meant to persecute, harass and embarrass me, says Mkhwebane

Mpofu had earlier told the committee that it may be liable for contempt of court should it fail to halt the inquiry proceedings.

Ebrahim insisted that “what is styled as an adjournment request” is not a short-term application.

“There’s no fixed date for resumption. I noted what Advocate Mpofu said earlier today that they are willing to go up until the stage of the Western Cape High Court.

“But if history has told us anything, the Public Protector has repeatedly appealed matters. We have gone so far to historically see the first of a rescission application.”

Regarding Mileham’s recusal, Ebrahim reiterated that the motion for the Public Protector’s removal from office, which was tabled in December 2019 by DA MP Natasha Mazzone, was passed through the National Assembly.

Mkhwebane had expressed concern on a possible conflict of interest since Mileham is married to Mazzone.

“In fact Ms Mazzone has no part whatsoever in these proceedings to date,” she said.

Mandate

Following deliberations, Dyantyi said he was of view that the adjournment should not be granted, but would leave members of the committee to decide.

He also pointed out that the Constitutional Court (ConCourt) stated that the inquiry proceedings should not be dragged.

“The Constitutional Court has confirmed the importance of the committee holding the Public Protector accountable in terms of Section 194 of the Constitution with due regard to the fact that her term of office expires in October 2023.”

Mkhwebane’s application for adjournment has since been rejected as there is no legal impediment stopping the committee from doing its work.

Dyantyi said the committee would observe an interdict if there is one.

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He indicated that members of the committee who objects to the postponement being denied to seek their own legal opinion.

Meanwhile, Mkhwebane indicated that she did not give a mandate to her legal team to withdraw and said she can’t continue without legal representation.

The Public Protector told the committee she would need to find out if her legal team was able to continue.

“They didn’t even say they are terminating, I must find out from them are they willing to proceed with me or then I’ll have to start afresh and get a new legal team. If I get a new legal team that’s another challenges because it might delay the whole process,” she said.

“I would like to be given an opportunity to engage with them because I don’t know why this came out the way it did.”

The committee will meet at 10am on Friday to discuss a way forward.