As more witnesses who worked with suspended Public Protector Busisiwe Mkhwebane continued to testify this past week, visible tensions were also seen between Mkhwebane’s legal representative Dali Mpofu and Chairperson of the Section 194 Committee Richard Dyantyi. The week ended with a complaint and a threat from Mpofu to apply for the possible recusal or removal of Dyantyi.
The Section 194 Committee has been probing Mkhwebane’s fitness to hold office since 12 July. The inquiry is based on misconduct and incompetence prima facie evidence found by the three-member panel of experts chaired by retired Judge Bess Nkabinde. The report is also based on the DA Motion calling for Mkhwebane’s fitness to hold office to be probed.
Tension between Mpofu and Dyantyi ensued on Thursday afternoon, when Dyantyi was still on the platform, to seek clarity from Executive Manager for Investigations in the Office of the Public Protector Pona Mogaladi who was testifying on the virtual platform.
DYANTYI: “Just pause there, Advocate Mpofu, I don’t take kindly [to] what you are doing”
MPOFU: ” What am I doing”
DYANTYI: ” You know what you are doing”
MPOFU: ” Then…”
DYANTYI: ” Just refrain form what you are doing. Don’t do what you are doing”
MPOFU: ” No, what is it Chair, refrain from something I don’t know?”
DYANTYI: ” You know what you are doing don’t mumble here whilst I am on the platform, just stop that. Just stop that.”
MPOFU: ” I also don’t like what you are doing but I’m keeping quiet.”
DYANTYI: ” Keep quiet, you’re better off when you do so. Mhhh…..Miss Mogaladi, what…errr)
MPOFU interjected: ” Hello, I want to object ”
DYANTYI: ” Object on what? ”
MPOFU: ” To what you are saying about saying that I’m mumbling. I think you must withdraw that, because it’s an insult.”
DYANTYI: ” You are disturbing me, I was sitting here in front of you since yesterday and today you never found me mumbling and disturbing your train of thoughts and what you are doing…….fxxxx.”
DYANTYI: ” Thank you.”
MPOFU: ” I apologise if I disturbed.”
DYANTYI: ” I get that, ..I get that.”
To withdraw or not to withdraw ‘mumbling’
As the argument continued between Mpofu and Dyantyi, call for the withdrawal of the “mumbling” word and the refusal to withdraw it continued.
MPOFU: “But don’t say I’m mumbling. If I disturbed when I was talking to the Public Protector for that I apologise. But you must also never say that I’m mumbling. And you must withdraw that.”
DYANTYI: ” Thank you Advocate Mpofu.”
MPOFU: ” No don’t thank me.”
DYANTYI: ” I’m not withdrawing it, I’m not withdrawing it.”
MPOFU: ” Why not withdrawing it?”
DYANTYI: ” ……..That’s exactly what you are doing. I’m not withdrawing it. Please switch off the mic of Advocate Mpofu.”
MPOFU: ” Why are you shouting Chair?”
DYANTYI: ” Ok, thank you. Switch off that mic Advocate….I’m, on, on , on the platform.”
MPOFU: ” So, what will you say if I’m on the platform and you are mumbling?”
DYANTYI: ” Advocate Mpofu, I want you to switch off your mic, and stop talking. I have not recognised you to speak.”
MPOFU: ” Thank you Chair.”
DYANTYI: ” Thank you.”
Recusal or removal of Dyantyi
On Friday morning, Mpofu used the opportunity to make a statement, following the outcome of Mkhwebane’s recent Constitutional Court rescission application.
Mpofu spoke for half an hour before the next witness Muntu Sithole from the Public Protector’s Legal Services Department could take the stand. Mpofu laid a complaint indicating that they may apply for the recusal or removal of Dyantyi.
Dyantyi and National Assembly Speaker, Nosiviwe Mapisa-Nqakula’s alleged involvement in the way the rescission application was dealt with is a concern.
Mpofu also said one of the anomalies was when the Speaker requested Chief Justice Raymond Zondo to expedite the process of the rescission court application as the Assembly had to start with the inquiry.
One of the main concerns in the rescission application was the inclusion of a judge in the Panel. The Western Cape High Court had ruled in favour of Mkhwebane raising concern about the separation of powers. However, the ConCourt ruled against it.
Concern about the investigation into SMS leak
As Mpofu continued to make summaries on Mkhwebane’s court challenges, he also touched on how the courts also ruled that she has the right to legal representation during the parliamentary inquiry.
Mpofu further spoke about the complaint against the leaked SMS that was sent to Parliament’s senior counsel pre-empting Mkhwebane’s rescission ConCourt application.
” On the 24th of April the counsel for the National Assembly and for this committee Advocate Breytenbach received an SMS from a certain Mr Abramjee indicating that he had it , “quote-unquote”, on good authority that the judgment will be coming the following week and the Public Protector’s application would be dismissed. That application Chair was in respect of the second leg of the ConCourt judgment to do with the judge, where there was a rescission application in respect of that. And that was an issue in the litigation that I referred to, because what we were basically saying to the Parliament, was stop continuing (with) the matter because it’s sub judice, it’s continuing before the Constitutional Court among other things. So basically what Mr Abramjee was trying to do is to say to your counsel and that of Parliament( is) – don’t worry the sub judice point is going to be moot because next week the judgment is coming in your favour on good authority”, said Mpofu.
He says there was an agreement between the parties to approach Chief Justice Raymond Zondo to investigate the leak. He says a joint letter was written to Zondo who also spoke in an SABC interview confirming that the leak would be investigated.
Mpofu further raised concern on Zondo’s handling of the investigation into the SMS leak.
” On the 17th of June the Chief Justice then released the report of an investigation which is said to be led by retired Judge (Lex) Mpati. This was to put it mildly, bizarre at fundamental levels. It was the first time in South Africa or at least anywhere that I know of, that we get an investigation report by a person who’s identity and the appointment is only revealed at the stage of the report. Not at the stage of the appointment or the conduct of the investigation.”
Mpofu says the latest concern is the way the committee welcomed the Constitutional Court order that Mkhwebane should pay personal costs when the application was dismissed on 24 August.
“More importantly in the triumphalist statements that were made about welcoming the personal costs ordered against the Public Protector. We find that to be completely not in line with the role of this committee, to the extent that you are speaking for this committee or yourself if you are speaking for yourself, because we are in the middle of a process which requires for all of us to try and dignify and at the very least to pretend that it is fair and reasonable. It is very clear now and everyone who is watching this, it’s very clear that may just be a pipe dream, but I think it is incumbent upon all of us see it through. So that’s effectively the complaint we put. It may or it may not culminate in an application for your recusal or your removal, but it’s something that we would like you to consider, not necessarily to deal with now but maybe at our next sitting,”
Dyantyi noted Mpofu’s complaint before the Sithole could testify.
“The intension here was for you to place on record what you have now defined as a complaint. And it is not going to before discussion. I have noted the complaint you have placed, because I have to respect the time we have set for the witness because on the platform for 30 minutes now we have not started with. I will make a ruling on this matter, but I don’t want to take the time of the evidence leader. So you would have in the 30 minutes placed on record a journey and at the end, the actually complaint. It is well received and a ruling will be made,” Dyantyi explained.
I was cited by the Public Protector as a second respondent
Dyantyi made his ruling after the cross examination of Sithole. He denied that he is biased.
” If I understood correctly Advocate Mpofu and the PP are of the view that a filing of a further affidavit by the state attorney acting on behalf of the Speaker of the National Assembly and myself in our capacity as the first and second respondents in the Western Cape High Court , has give rise to relegation of bias on my part. Advocate Mpofu is well aware for the fact that it is the Public Protector who launched the litigation to stop this Section 194 committee from proceeding. I was cited by the PP team as the second respondent. Thus it would not be fair nor logical in my view when in fact I was drawn into the proceedings by the PP herself”
” Whether the Constitutional Court is wrong or right it is not for me to determine. I cannot be held responsible for the court’s rational or the decision arrived at, as much as you may differ with it. For Parliament what is key from that judgment is that it rendered the Public Protector’s argument in the High Court that the pending rescission matter preventing this committee from continuing its important work due to the sub judice rule, moot.”
In one of his responses towards the end following Dyantyi’s ruling Mpofu said.
” We have seen people trying to resuscitate dead witnesses like the Biblical Lazarus. And those kind of things which are in our experience. But again those will be ventilated if and when the necessity comes to deal with the work of the committee. We can’t expect you to adjudicate on yourself or the members on themselves in that respect. That’s all Chair and for the rest we are placing the a matter on the record as a matter of concern and if and when e take it further we will do so”
In his ruling Dyantyi reiterated that the inquiry will not have any pre-determined outcomes.
The Inquiry will resume on Thursday next week with the further cross examination of Sithole by Mpofu followed by a question and answer session between Committee members and Sithole.