Suspended Public Protector Busisiwe Mkhwebane speaks to Advocate Dali Mpofu during the parliamentary inquiry into her fitness to hold office on 25 August 2022. Picture: Gallo Images / Daily Maverick /Leila Dougan
Public Protector Busisiwe Mkhwebane is challenging Section 194 committee chair Qubudile Dyantyi’s decision not to recuse himself.
Proceedings into Mkhwebane’s fitness to hold office resumed on Thursday, where the Public Protector’s legal team lodged an review application challenging the dismissal of her recusal application.
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Last week, Dyantyi decided not to recuse himself from the inquiry on the basis that Mkhwebane failed to prove that he was biased.
The Public Protector’s recusal application also included Democratic Alliance (DA) MP Kevin Mileham, who also refused to recuse himself from the committee.
Mkhwebane had expressed concern on a possible conflict of interest since Mileham is married to DA MP Natasha Mazzone, who tabled a motion for the Public Protector’s removal from office in December 2019.
On Thursday, Mkhwebane’s counsel, Advocate Dali Mpofu, made an application for the inquiry proceedings to be postponed pending the Western Cape High Court’s ruling on the review application.
“We have every intention [to lodge the review application] by Monday at least,” Mpofu told the committee, before adding that this, however, depends on whether the proceedings will be adjourned.
He highlighted that the committee may be liable for contempt of court should it fail to halt the inquiry proceedings.
“Contempt of court is a criminal offence,” the advocate said.
According to Mpofu, the Public Protector will seek an order declaring the committee’s decision unlawful and invalid if it concludes not to grant the adjournment.
“One of the [remedies] sought if [the committee] dismisses the [adjournment] application will be to set aside, not just the non-recusal decision, but also the non-postponement decision.
“Although a decision has not been made, we have been here long enough to anticipate what the decision is likely to be,” Mpofu continued.
Meanwhile, evidence leader advocate Ncumisa Mayosi addressed Mpofu’s suggestion that the committee would dismiss the postponement application based on past experience and “especially if the evidence leaders oppose this application”.
Mayosi insisted that the evidence leaders have not played a role in the decision making of the committee regarding postponements.
“To borrow from the Public Protector’s phraseology, based on past experience assertions of this nature have tended to be used to impune the character of the evidence leaders as legal professionals which in turn can and has been used to attack the integrity of this Section 194, hence the need to place our position on record whenever this occurs,” she added.
READ MORE: Inquiry meant to persecute, harass and embarrass me, says Mkhwebane
Evidence leader Nazreen Bawa last week, also refused to recuse herself.
United Democratic Movement (UDM) leader Bantu Holomisa and #FeesMustFall activist Chumani Maxwele wanted Bawa to be recused amid accusations by Judge President John Hlophe’s lawyer Barnabas Xulu.
The complaints from Holomisa and Maxwele was based on Xulu’s affidavit, which included claims Bawa placed false evidence before the court and interfered in the investigations of the National Prosecuting Authority (NPA).
Additional reporting by Lunga Simelane
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