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
The Section 194 Committee has resolved that former public protector Thuli Madonsela will not testify before the parliamentary inquiry.
Proceedings into Public Protector Busisiwe Mkhwebane’s fitness to hold office continued on Wednesday, where the parliamentary inquiry was scheduled to hear evidence from Madonsela.
Mkhwebane’s predecessor was subpoenaed by the committee and was expected to testify on matters relating to the Vrede dairy farm and CIEX-Absa reports.
Earlier in the meeting, Mpofu complained about the legal team not having time to prepare for Madonsela’s testimony.
While they did not object to Madonsela’s evidence being led, Mpofu said there was confusion regarding the former public protector’s statement.
He said it appeared that Madonsela had filed another affidavit that is longer than the one she sent to Mkhwebane’s legal team last week.
“As to what happens when our turn comes to question her is another matter,” the advocate told the committee on Wednesday morning.
After a brief adjournment, Parliament’s legal advisor, Fatima Ebrahim informed the committee that Madonsela’s new affidavit was not nine pages as Mpofu claimed.
Ebrahim indicated that Madonsela had attached two different affidavits which contained minor changes.
“So the one without changes and another one that has changes made by hand,” she said.
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“In advocate Mpofu’s defence, when [the documents] came in we were all confused. In terms of the changes made, they are purely grammatical and editorial type changes.”
Mpofu, however, argued there were now multiple versions of Madonsela’s statement.
He said there must be a completely new statement.
“What is happening now is not just confusing, but actually probably illegal because not only has Professor Madonsela changed her statement, there are now three versions of the statement,” Mpofu said.
“Version three is the one that arrived this morning which commissioned yesterday and that makes it even worse. It seems to be that version three is the typed version of version two.
“There is something fundamentally wrong and possibly illegal because that version says it was signed in Stellenbosch, but it was commissioned in Northriding, Johannesburg, which is a physical impossibility.”
Section 194 Committee chairperson, Qubudile Dyantyi said Mpofu’s concerns were “noted” and agreed to reschedule Madonsela’s evidence to a later day.
Dyantyi proposed that Madonsela testify next week.
“We would have considered Saturday and Sunday to do that [since] she would have been available, but the public protector and her legal team have prior commitments already. The dates that we want to place here is that she is available the entire day on Monday and half a day on Tuesday.”
READ MORE: Madonsela sees ‘no rational connection’ to appear at Mkhwebane’s hearing
Mpofu welcomed Dyantyi’s ruling not to proceed with Madonsela’s evidence, but raised concern over the suggested dates.
“We have a problem with Tuesday [but] we could do Monday.”
The advocate also said there was a “slight challenge” to deal with Public Protector chief investigator Rodney Mataboge’s testimony this afternoon.
He pointed out that the legal team had requested that Mataboge be called on Wednesday and Thursday, but the committee rejected this.
“We stopped our preparations because you rejected out proposal,” Mpofu said.
Members of the committee deliberated on the issue of Madonsela and Mataboge’s testimonies.
ANC MP Bheki Nkosi said the committee should take a decision not to hear her because no one wants to lead her evidence.
Democratic Alliance (DA) MP Kevin Mileham said it was unfair to put the burden of leading Madonsela’s testimony on the evidence leaders.
“The burden should be on the public protector’s legal team to lead the evidence and then allow [the evidence leaders] to cross examine,” Mileham said.
While ANC MP Xola Nqola questioned the relevance of Madonsela’s testimony, he said he was still willing to hear her evidence.
READ MORE: ‘We cannot just shelve it’: Section 194 chair accused of ‘insulting’ Mkhwebane, Mpofu
Nqola suggested that the evidence leaders prepare Madonsela on behalf of the committee.
“We, as the committee, remain with the conviction that the evidence of advocate Madonsela is relevant so we are willing to hear her evidence. Let’s take Madonsela as a committee witness.”
African Christian Democratic Party (ACDP) MP Marie Sukers highlighted that Madonsela was called to give evidence at the request of Mkhwebane and her legal team.
DA MP Mimmy Gondwe added that the committee should “do away” with not having Madonsela as a witness, while United Democratic Movement (UDM) leader Bantu Holomisa wants her to testify.
Mpofu interjected, saying Mkhwebane had never indicated that she did not want Madonsela’s evidence.
“I don’t know whether it is deliberate that people want to torture us emotionally,” the advocate said.
He argued that the legal team could not lead evidence of Madonsela because of the issue of the statement.
“The notion that she is no longer needed must be rejected.”
In light of the deliberations, Dyantyi said Madonsela’s statement will be taken as written evidence by the committee which meant that she won’t be called to appear at the inquiry.
“[This] helps us as the committee to do away with the proposed oral evidence of Monday and Tuesday because we have that on record. The members have accepted that the committee must adopt the witness’s cleaned up statement.”
But Holomisa objected to this.
“I completely disagree with your approach. Why are you hiding her not to come and answer questions verbally?”
An unhappy Mpofu accused the members of sabotaging the committee.
“This approach of bulldozing is not going to end well.”
Mpofu told the committee that Madonsela’s statement did not “scratch the surface” on the Vrede and CIEX matters.
“You might as well throw it in the dustbin because it doesn’t deal with those issues at all. For our part, we require the evidence of this witness. The evidence of this witness is clearly relevant.
“If there’s now going to be a summersault on calling then it will be a matter that will have to be resolved in another forum because now we are just being bullied.”
He added Mkhwebane will go to court or “make a fresh application” for the committee to summon Madonsela.
“We have to exhaust our remedies in which case you’ll have a much longer delay on your hands,” Mpofu said.
Meanwhile, it was also resolved that Mataboge will testify on Wednesday and then continue with his testimony at 9am on Thursday.
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