Mkhwebane inquiry: Mpofu’s refusal to question witness delays testimony indefinitely

Suspended Public Protector Busisiwe Mkhwebane’s lawyer, advocate Dali Mpofu, refused to question a witness at the Section 194 Inquiry, resulting in the meeting being adjourned.

Proceedings into Mkhwebane’s fitness to hold office resumed on Thursday, but failed to hear the testimony of Public Protector investigator, Bianca Mvuyana.

‘Caught in the crossfire’

On the point of contention at the inquiry was the issue of Mvuyana’s witness statement as it was unclear if she intended to give her statement.

Section 194 committee chairperson Qubudile Dyantyi pointed out that Mvuyana had already taken an oath to testify on Monday, in the absence of the statement.

“This is a witness who has been on the list of the Public Protector since November 2022. People responsible for making statements is not this committee or the evidence leaders… it’s the Public Protector and her legal team. They can’t come here now and ask why there is no statement. It is their responsibility.”

In his response, Mpofu accused Dyantyi of “distorting” what he had mentioned earlier.

ALSO READ: ‘We cannot just shelve it’: Section 194 chair accused of ‘insulting’ Mkhwebane, Mpofu

“I know why there is no statement, it is because of the issues you are running away from. It was explained to you on Monday that Ms Mvuyana was ill last week, and by the time she was available, which was last Friday, it was during the issue of the non-payment.”

The advocate said Mvuyana was “caught in the crossfire” and was not given a chance to indicate whether she would like to make a statement.

“We are not going through the motions here just to reach the finish line. We are having an inquiry and an inquiry means there must witnesses who must be properly sworn in, make statements if they so wish, and must then we lead [to give evidence]. That’s what an inquiry is. We are not running a kangaroo court here or a shebeen brawl.”

Earlier, Parliament’s legal advisor, Fatima Ebrahim informed the committee that the witness had chosen not to make a statement.

‘A fair process’

Meanwhile, Democratic Alliance (DA) MP Mimmy Gondwe complained that the committee has spent two hours going back and forth.

“We were told to be here at 9am and we were here on time so can we please proceed,” she said.

African Christian Democratic Party (ACDP) Marie Sukers said the committee’s work can’t be derailed, while ANC MP Xola Nqola also indicated that he wanted to proceed.

But Mpofu refused to question the witness.

“[Problems were created] when this committee distorted the views of the witness that she opted not to make a statement. That’s when the matter arose,” he said.

“I’m prepared for a fair process, not a kangaroo court. I’m prepared to ask questions when the witness has exercised her rights and when my client has exercised her rights. I don’t care what anyone else thinks about it.”

READ MORE: ‘Playing for time’ – Mkhwebane trying to hold on until term of office expires

Following a 15 minute adjournment, Mpofu told the committee that he consulted with Mkhwebane, Mvuyana and the bar council during the brief break.

He said Mkhwebane wanted to exercise her right to make a statement.

“The witness would also prefer to make a statement. She will be confortable to testify under those conditions. I have explained the situation to the bar council that I am caught between the instructions of his client and your [initial] ruling and they have agreed that I should obey the instructions of my client. That’s the position.”

Dyantyi said he was of the view that Mkhwebane and legal team were waving their right to interact with the witness.

The chair said the committee was not going to “force the Public Protector to interact with the witness”.

“I’m not going into any conspiracy on whether it is about preparedness or not, but effectively what you are saying is that you have no further questions that you want to put to the witness. With that I want to proceed with the work of the committee,” he said.

Watch the proceedings below:

More witnesses

As the committee sought to continue, Economic Freedom Fighters (EFF) leader Julius Malema disrupted the proceedings by raising a point of order.

“Chair, we can’t proceed in the manner you are suggesting.”

Only three witnesses – including former Public Protector Thuli Madonsela and Mkhwebane – have to testify before the committee, according to Dyantyi.

“Professor Madonsela has confirmed the 1st of March as the date she will come to the committee and testify.”

Furthermore, the chairperson indicated that the inquiry was now on a “countdown”.

“The National Assembly has long given us a deadline and we keep revising it based on things that are beyond our control and as things stand, the outcome of the process has to be in front of the National Assembly by the end of April. We are not working on an open-ended process,” she said.

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

He added that Mvuyana’s testimony would be “indefinite” since the time of her subpoena lapses on Thursday.

“The poor time management of Mkhwebane’s team to interact with the witness can’t be passed on to the committee. We know where the factory fault happened. Therefore, it is clear that at this stage we have to release Ms Mvuyana as a witness for today,” Dyantyi said.

Former deputy Public Protector Kevin Malunga was expected to testify on Friday, but Nqola highlighted that his affidavit stated that he had no knowledge of the charges against Mkhwebane.

He suggested that Malunga’s affidavit be taken as written evidence and he isn’t called to testify.

“From what I have seen it will not help us.”

It was agreed that Malunga would not testify before the inquiry.

The meeting was, therefore, adjourned and the committee is set to reconvene on Monday.