Africa-Press – South-Africa. Chairperson of the Section 194 committee inquiring about suspended Public Protector Busisiwe Mkhwebane’s fitness for office, Qubudile Dyantyi will respond to Mkhwebane’s latest attempt to remove him by Friday.
Last week, the beleaguered Mkhwebane brought her second application for Dyantyi’s recusal.
The Section 194 committee is inquiring whether Mkhwebane displayed misconduct or incompetence warranting her removal from office.
Mkhwebane’s application has its genesis in allegations by her husband, David Skosana, that the late ANC MP Tina Joemat-Pettersson solicited bribes of R200 000 each for herself, Dyantyi and ANC chief whip Pemmy Majodina.
Skosana opened a complaint with the police while Mkhwebane did so with Parliament’s ethics committee.
Dyantyi and Majodina have publicly denied the allegations.
Joemat-Pettersson died on 5 June. Her death is the subject of an inquest.
After Mkhwebane, backed by the EFF, the United Democratic Movement (UDM) and the African Transformation Movement, insisted on Dyantyi’s recusal at a meeting of the Section 194 committee last month, he indicated that he would consider a written recusal application, as required by the committee’s directives.
On 12 July, Mkhwebane filed her formal application for his recusal, compiled by her counsel, Advocate Dali Mpofu SC and his juniors, advocates Bright Shabalala and Hangwi Matlhape, a day before the Constitutional Court upheld her suspension by President Cyril Ramaphosa and dismissed her challenge to the impeachment proceedings.
Mkhwebane presented seven grounds for Dyantyi’s recusal:
In her application, Mkhwebane argued that it is immaterial whether actual bias from Dyantyi exists and that questioning her and her legal team’s motives in bringing a recusal application is also grounds for recusal.
According to a statement from Parliament, Dyantyi noted the recusal application and informed Mkhwebane’s attorneys that he would respond in writing by Friday.
“Mr Dyantyi indicated that he will apply his mind to the content of the application. The committee awaits the summation of evidence from the evidence leaders. The committee has noted that Advocate Mkhwebane did not indicate her intention to make a closing argument or submit a written closing statement,” reads the statement.
Mkhwebane has a history of accusing those attempting to hold her accountable of bias or disparaging them.
In September last year, she brought another application for Dyantyi’s recusal, along with an application for the recusal of DA MP Kevin Mileham. She claimed that Dyantyi had been biased against her and her legal team, and had allowed the process to be procedurally unfair.
Dyantyi refused to recuse himself.
“I do so in the belief that the Public Protector has failed to establish any grounds upon which it can be said that I am biased or that my conduct may give rise to an apprehension of bias,” he stated on 17 October.
Mkhwebane wanted Mileham to recuse himself because the motion that led to the impeachment proceedings was moved by his wife, DA MP Natasha Mazzone, in her capacity as DA chief whip at the time.
Even though the motion was adopted by the National Assembly – thus becoming a motion of the National Assembly – Mkhwebane and her legal team continue to refer to it as the “Mazzone motion” and refer to Mazzone as the “complainant”.
Mileham, too, refused to recuse himself.
Mkhwebane subsequently challenged Dyantyi’s decision in court, but the Western Cape High Court dismissed her application. She is appealing to the Supreme Court of Appeal, and took to Twitter to raise funds for this litigation.
Mkhwebane also brought an unsuccessful application against the evidence leaders, advocates Nazreen Bawa SC and Ncumisa Mayosi.
On behalf of Mkhwebane, Mpofu claimed that Bawa and Mayosi acted with racism and maliciousness when they disclosed the amounts paid by the Office of the Public Protector to several high-profile advocates, Mpofu included.
In response, the evidence leaders pointed out they had been explicitly instructed by the committee to itemise legal payments of more than R2 million by the Office of the Public Protector to various legal practitioners and firms, and stressed that they had “no control over the racial demographic of the service providers who rendered services to the office of the Public Protector”.
They said the racism accusations levelled against them over legal fees disclosures were not only false and “contrived”, but part of a desperate attempt to stall the inquiry.
UDM leader Bantu Holomisa, who has been seen as often doing Mkhwebane’s bidding in the committee, also brought an unsuccessful application for Bawa and Mayosi’s recusal.
During her extensive litigation against the parliamentary impeachment process, Mkhwebane argued in court papers that former National Assembly speaker Thandi Modise is “biased” against her. The courts didn’t agree.
In her testimony before the committee, she accused judges who ruled against her of “professional jealousy” and insisted that the courts made mistakes in their rulings against her.
She also claimed that she was only facing potential removal because she had made findings against Ramaphosa and described herself as a “sacrificial lamb” that was being unfairly vilified by “mainstream media”.
Suspended Public Protector Busisiwe Mkhwebane.News24 PHOTO: Jan Gerber/News24 Last year, Mkhwebane lodged a misconduct complaint at the Judicial Service Commission (JSC) against retired Constitutional Court Justice Chris Jafta, who wrote the scathing ruling with which the apex court’s majority invalidated her Bosasa-CR17 report. She did this by raising the same arguments she raised in a failed rescission application to the Constitutional Court.
Mkhwebane also sought to scupper Gauteng High Court Judge President Dunstan Mlambo’s chances of being considered for appointment as Chief Justice by complaining, among other things, that he had refused to meet with her. Mlambo was one of the three judges who first invalidated her CR17 report.
Mpofu and EFF leader Julius Malema – a staunch supporter of Mkhwebane – also forced Mlambo to answer to baseless accusations of sexual harassment at his JSC interview for the Constitutional Court.
In 2019, Mkhwebane launched a completely baseless attack on Gauteng High Court Judge Sulet Potterill, who granted State Enterprises Minister Pravin Gordhan’s application for an interdict against the enforcement of her remedial action in the so-called SARS “rogue unit” report, pending his ultimately successful challenge to that investigation.
Mkhwebane later apologised to Potterill.
There is also evidence before the committee that Mkhwebane signed off on articles penned by Paul Ngobeni, who isn’t allowed to practise law in South Africa, that were disparaging about judges who had ruled against her. Some of these articles were paid for out of the Office of the Public Protector’s legal services budget.
Meanwhile, Mkhwebane has refused further participation in the Section 194 process, only briefing her legal team to deal with the recusal application against Dyantyi.
After her testimony before the committee couldn’t be concluded because she continually appeared before the committee without legal representation, the committee unanimously decided on 9 June that it would send written questions to Mkhwebane, give her another opportunity to put further evidence before it, and indicate whether she would answer the questions orally or in writing and in what form her closing arguments would be.
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