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

Parliament’s legal services says the Section 194 Committee carrying on with its work will not violate suspended Public Protector Busisiwe Mkhwebane’s right to legal representation.

Mkhwebane could not continue with her testimony on Monday because her legal team was not present at the impeachment inquiry due to the non-payment of fees.

The Public Protector’s office had written to Mkhwebane informing her that the institution would not continue to pay her legal bills beyond 31 March.

This has left the committee, which is looking into her fitness to hold office, with a dilemma since Mkhwebane was entitled to full legal representation in the hearings.

‘This is not a quasi-judicial process’

During Monday’s proceedings, the committee’s chairperson Qubudile Dyantyi said they would continue to do its work, with the evidence leaders briefing the committee on the evidence heard at the inquiry at this stage, much to the dismay of Mkhwebane.

The public protector had protested against evidence leader Nazreen Bawa leading evidence about CR17 court records and argued that it violated her rights because her legal team was absent.

“This is illegal, unlawful, and unethical,” she told the committee.

She then asked to be excused and left the meeting.

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After an hour lunch-break, parliamentary legal advisor Fatima Ebrahim reminded the committee that members decided to have evidence leaders present at the inquiry from the beginning of the hearings.

“It was felt that it would a better approach if we had the support of evidence leaders. We were at pains to advise that this is not a quasi-judicial process, and that the use of evidence leaders should not be seen to be an admission on our part that this is a trial of any kind or a criminal process or anything akin to that.

“Therefore, we specifically stated that the nature of the process is inquisitorial,” she said.

Watch the proceedings below:

Ebrahim pointed out that it was made clear that it was the committee that must take decisions in the inquiry rather than the evidence leaders.

“The presentation of evidence can take various formats… We tend to think the presentation of evidence being one, where witnesses are being called. But that is just one way that evidence can be presented.”

She said it would be impossible to lead all the written evidence through witnesses because they go “into thousands of pages”.

‘Final opportunity’

On the question of whether Mkhwebane would be prejudiced if the evidence leaders lead evidence without her legal team, Ebrahim indicated that the public protector would have at least two opportunities to respond to the evidence.

“The first is the intention that the public protector herself must appear before [the committee] and answer the questions of members and the evidence leaders if they have any questions to put to her.

“The process of the evidence leaders now seeks to equip members to ask those questions… That’s anything that may be disputed, any gaps or contradictions that may arise as a result of the evidence that is being presented can be dealt with.

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

“The second opportunity that the public protector will be given is to comment on the draft report and the purpose of that was in case the committee missed or misunderstood anything [so] there should be another final opportunity for the public protector to place any corrections or anything she wanted the committee to consider further on record,” she said.

She added that it would be ideal if Mkhwebane’s legal team was present, but highlighted that the committee also has a duty to finish its work “in a reasonable timeframe”.

Ebrahim further dismissed the suggestion Mkhwebane’s right to full legal representation was being denied by the committee proceeding to deal with the evidence.

“There is another part of the process which is the committee getting to grips with all of the evidence before it and certainly, when the public protector returns with her legal team should they wish to engage with any of these issues, they must be given the opportunity to do so.”

‘There’s no inquiry here’

Economic Freedom Fighters (EFF) MP Omphile Maotwe said she was of the view that Ebrahim confirmed that the evidence leaders are going to be dealing with evidence.

“It’s very clear that we are continuing with the inquiry in the absence of [Mkhwebane’s] legal representation, and that alone tells you we should not proceed.”

Democratic Alliance (DA) MP Mimmy Gondwe and ANC MP Bheki Nkosi agreed that the committee should proceed with its work.

“In the morning we took a decision [that] we are adjourning or postponing the [hearing] so there’s no inquiry here,” Nkosi said.

“As a committee we do have a right to utilise whatever resources that is available to enlighten us [including the evidence leaders].”

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