Public Protector Busisiwe Mkhwebane during the inquiry into her fitness to hold office in Parliament on 2 November 2022. Picture: Gallo Images/Brenton Geach
The application for the evidence leaders in the Section 194 Inquiry on suspended Public Protector Busisiwe Mkhwebane’s fitness to hold office to be removed has been rejected.
The committee met on Tuesday to deliberate on the removal application against advocates Nazreen Bawa and Ncumisa Mayosi.
On Monday, Mkhwebane’s first witness was expected to testify, but her legal representative, advocate Dali Mpofu, made oral arguments about the removal application before the committee.
The Public Protector’s application, Mpofu told the committee, was brought on the grounds that the evidence leaders displayed misconduct, cross-examined witnesses, and helped witnesses with their affidavits.
Mpofu accused Bawa and Mayosi of bias and racism, claiming that the evidence leaders acted wrongfully when they disclosed the legal fees paid by the Public Protector’s office to several high-profile advocates.
He previously said the flight of their names amounted to abuse of black lawyers and advocates, but Bawa argued that information was showed to the committee in response to a question about how the R147 million spent by the Public Protector’s office over Mkhwebane’s six-year term had been spent.
Mpofu further revealed on Monday that one of the advocates named in the legal fees evidence, Vuyani Ngalwana has laid a complaint with the Legal Practice Council (LPC).
However, before Mpofu could finish his arguments in the allotted time, the advocate and Section 194 inquiry chairperson, Qubudile Dyantyi had yet another heated exchange.
Dyantyi refused to allow Mpofu more time to make further arguments, but the advocate kept on interrupting the chairperson.
“Can’t you give us 20 minutes?” Mpofu asked.
In his response, Dyantyi said: “Advocate Mpofu, switch off your microphone. In every institution, there’s a time given. In church, the church starts at this time and ends at this time. Even kindergarten, they are given time to play and collect the toys and do this”.
During Tuesday’s proceedings, parliamentary legal services advisor Fatima Ebrahim provided legal opinion to members of the Section 194 Inquiry on the removal application.
“I remind the committee that the displaying of names, as regard to the fees, was a direction of the committee in the first instance and then on the second occasion by the chairperson when the evidence leaders wished to make corrections [to the amounts flighted].
“As such it cannot be said to a decision taken by the evidence leaders who acted under instruction,” Ebrahim said.
She also stressed that Bawa and Mayosi were not prosecutors, saying they were tasked to assist the committee to gather and present evidence relevant to its investigation.
“Similarly, there is nothing untoward in evidence leaders preparing draft affidavits and assisting witness with statements. That is a core part of their function in assisting committee and it’s a standard legal practice,” the legal adviser said.
Ebrahim also pointed out the Mkhwebane’s legal team chose not participate when United Democratic Movement (UDM) leader Bantu Holomisa filed a recusal application against Bawa.
Mpofu on Monday told the committee that they were not invited to make representations on the application.
While Economic Freedom Fighters (EFF) MP Omphile Maotwe sided with Mkhwebane on the removal application, Democratic Alliance (DA) MP Mimmy Gondwe labelled the move as “another veiled attempt” to delay the work of the committee.
“These applications are being brought in a piecemeal fashion and they are all aimed at simply stalling our work,” Gondwe said.
DA MP, Kevin Mileham shared the same sentiments saying the removal application was “frivolous” and was “designed to waste time”.
African National Congress (ANC) MP Bheki Nkosi, meanwhile, stressed that the Section 194 Inquiry was an oversight committee of Parliament.
“This committee can demonstrate that it has provided procedural fairness to the Public Protector,” Nkosi said.
Nkosi also dismissed the allegations of racism levelled against the evidence leaders.
“I think that this request from the Public Protector should not be acceded to,” he added.
Following a tea break, Dyantyi said members of the committee, excluding Maotwe and Holomisa, supported the dismissal of Mkhwebane’s application.
The chair also said Mkhwebane must be the first witness when the committee reconvenes in January.
According to Parliament’s draft programme, the Section 194 Inquiry aims to complete its work by March 2023.
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