Committee slammed for allowing Mkhwebane’s hearing to proceed without her lawyers

The Section 194 inquiry into the removal of suspended public protector (PP) Busisiwe Mkhwebane could be on the verge of running into a legal wall if she doesn’t have Constitutional Court-mandated legal representation.

This has already cost the Office of the Public Protector about R26.2 million in the 2022-23 financial year.

Acting public protector Kholeka Gcaleka last week informed Mkhwebane that Public Protector South Africa was not in a position to extend its funding commitment for the provision of legal services for the purpose of the Section 194 proceedings beyond the current financial year.

ALSO READ: Mkhwebane not being denied right to lawyers, Section 194 Committee told

The ad hoc committee on Monday took flak from some MPs for allowing a “committee” presentation by evidence leaders to proceed, without the presence of Mkhwebane’s lawyers.

Not a committee ‘that is about to crumble’

Asked about substantial dissatisfaction by MPs on processes followed by committee chair Qubudile Dyantyi in conducting the inquiry, University of Pretoria senior law lecturer Dr Llewelyn Curlewis said he did not think heated debates pointed to “a committee that is about to crumble”.

“It [the committee] cannot cease to exist or function. What may happen is that a party not happy with the manner in which it continues to operate might apply to court for urgent intervention to possibly set aside some of its interim rulings or decisions.

ALSO READ: ‘It’s an illegal process’: Mkhwebane leaves Section 194 meeting amid funding dilemma

“Ultimately, it could also result in a review application after the conclusion of the inquiry,” said Curlewis.

After a heated argument, sparked by Dyantyi’s insistence that evidence leaders take MPs through the history of the CR17 Constitutional Court ruling, several committee members were outraged by presentation being allowed in the absence of Mkhwebane’s legal team.

In terms of last year’s ruling handed down by the Constitutional Court, rules for the process of impeachment were amended, forcing the committee to “afford the holder of a public office the right to be heard in his or her defence and to be assisted by a legal practitioner or other expert of his or her choice”.

Evidence leader advocate Nazreen Bawa and Dyantyi assured MPs that the process was “inquisitorial, rather than adversarial”.

Bawa stressed her presentation was not based on making a case against Mkhwebane but “to present evidence to the committee”.

ALSO READ: Mkhwebane’s right to having lawyers ‘doesn’t mean we are liable to pay legal fees’ – PP’s office

Describing Dyantyi’s approach to committee members as demeaning to a level of “regarding us as schoolboys and not responding to our questions”, United Democratic Movement leader Bantu Holomisa said: “You may have to consider suspending the hearing today until the acting public protector has found a solution to the Constitutional Court decision, compelling us to ensure that the PP has legal representation.”

Mkhwebane ‘entitled to legal representation’

Also concerned about Mkhwebane being unrepresented, Good party’s Brett Herron, said the suspended PP was “entitled to legal representation”.

African Transformation Movement MP Vuyo Zungula said: “We can’t expect her to fund the legal team from her own pocket. This will lead to the report being overturned in court on a technicality.”

Dyantyi said: “What we are dealing with here is CR17 and unit issues – evidence already placed on record.”

Economic Freedom Fighters MP Omphile Maotwe said Bawa should be “leading evidence in an inquiry, not what the chair has described as a committee meeting”.

“You … said we are stepping out of the inquiry. This is now an illegal and unfair exercise. [Bawa] must pack her bags and go.”

The hearing continues.

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