Cape Town – The Chairperson for the Committee for Section 194 Enquiry into Public Protector Advocate Busisiwe Mkhwebane’s fitness to hold office on Wednesday commended the committee for the unbiased and transparent way it conducted its business.
A day earlier on Tuesday, the committee adopted its final report some 14 months after commencing hearings, in which it recommended to the National Assembly that Advocate Mkhwebane be removed, based on numerous findings of serious misconduct and incompetence.
Committee Chairperson Qubudile Dyantyi said this recommendation was solely based on conclusive evidence put before the committee.
“Members worked diligently, without any fear or favour and without any preconceived outcome in mind with just the evidence placed before it to reach a conclusion,” Dyantyi said.
Earlier this month, the committee deliberated on all the charges in the motion before it.
The charges included:
- allegations of misconduct with respect to a report involving the South African Reserve Bank and ABSA Bank;
- misconduct in the investigation and reporting of the Vrede Dairy Project;
- incompetence during both of those investigations and in a report about the former Financial Services Board;
- allegations of misconduct in relation to the alleged intimidation, harassment and/or victimisation of staff at the Office of the Public Protector of South Africa; matters related to the expenditure of public funds on legal costs;
- the failure to conduct investigations in an independent or impartial manner; and
- deliberately seeking to make adverse findings against certain public officials while not making findings or directing remedial action in respect of others.
Dyantyi said the committee’s hearings began on 11 July 2022 with opening statements by the evidence leaders and Adv Mkhwebane’s legal representatives.
“It was at this meeting that Advocate Mkhwebane made it clear that she was participating in the proceedings under protest,” recalled Dyantyi.
The committee heard oral evidence from 24 witnesses, of whom 22 submitted statements.
In addition, Advocate Mkhwebane gave oral evidence with respect to Part A of her two-part statement.
In addition to oral evidence, the committee was presented with documentary evidence.
Dyantyi said the committee made it clear early on in proceedings that both oral and written evidence would be considered during its deliberations.
He said the committee faced various obstacles that impeded its ability to carry out its work timeously, forcing it to extend its programme on several occasions.
“The committee has carried out its functions diligently despite what some members viewed as deliberate attempts by Advocate Mkhwebane and/or her legal team to delay the proceedings and to undermine its authority and function,” said Dyantyi.
He said the committee intervened regarding her legal funding and legal assistance, although these matters were outside its mandate.
“At the adoption of the final report, a third set of attorneys had been appointed as Advocate Mkhwebane’s legal representatives of choice,” said Dyantyi.
“At some stage, her attorneys were briefed for 63 days (split in two parts) without briefing her Senior Counsel, only bringing a second recusal application against the Chairperson in that time.
“Thus, notwithstanding the additional R4 million made available to Advocate Mkhwebane to complete the enquiry proceedings, since 31 March 2023 she did not actively participate in any part of the enquiry dealing with the merits of the motion.”
Dyantyi highlighted that it was only after this date and Advocate Mkhwebane’s refusal to accept the State Attorney’s assistance that the committee resolved on 9 June 2023 to forge a new path.
The adopted programme on that day put in place concrete deadlines to ensure that the committee adhered to its constitutional responsibility and finalised its mandate.
“Since the introduction of the new way forward, not once did Adv Mkhwebane meet any of those deadlines,” said Dyantyi.
“In fact, in most instances, she did not even provide the committee with the courtesy to indicate she cannot respond.
“She acted as if she was above Parliament and not accountable to the institution or the committee.”
The committee at all stages provided Advocate Mkhwebane with the opportunity to give her version.
“We encouraged her at all times to participate in the process – whether it was to respond to questions by evidence leaders or questions by members.
“Even after she continuously ignored the deadlines, when the committee adopted its draft report, it provided her with a final opportunity to comment. Nothing was forthcoming.”
Dyantyi said the committee did all its work in an open and transparent manner, where the public could witness first-hand how a people’s Parliament operates.
“This was a novel process. A first of its kind,” said Dyantyi.
“We ensured that we are fair, unbiased, open and transparent.
At no stage did the committee refuse or hinder Adv Mkhwebane from being legally assisted.
“The committee went above and beyond to assist her and even agreed to summon witnesses on her behalf.”
He said the committee noted utterances by some members that they will take the committee report on review.
“It is their right, but we maintain that we followed due process. The committee is confident that its process and report can withstand legal scrutiny,” said Dyantyi.
He said the report will be sent to the National Assembly for adoption.
“The committee will have a final session where it will discuss lessons learnt and also address matters that arose that need further attention,” said Dyantyi.
