Africa-Press – South-Africa. President Cyril Ramaphosa should have only suspended Public Protector Busisiwe Mkhwebane after the Section 194 committee has made a finding, her legal counsel, advocate Dali Mpofu SC, says.
However, constitutional expert Hassen Ebrahim disagrees with Mpofu.
R3.7m – what it cost the Public Protector for Mkhwebane to live securely in comfort
Ebrahim was the first witness to testify before the committee. He outlined how the Public Protector fits into South Africa’s constitutional scheme.
Like he did on the first day, Mpofu spent most of his time advancing his case that the process was unlawful, and railing against Mkhwebane’s suspension.
Cross-examining Ebrahim, who was part of the Constitutional Assembly that drafted the Constitution, Mpofu questioned his expertise and was reprimanded by committee chairperson Qubudile Dyantyi over his disrespectful tone toward Ebrahim.
During one line of questioning, DA MP Kevin Mileham asked if he understood Mpofu correctly: if he was saying the Section 194 committee would have to make a finding of wrongdoing before Mkhwebane could be suspended.
Mpofu answered in the affirmative.
Ebrahim did not agree.
Section 194(3)(a) of the Constitution reads: “The president may suspend a person from office at any time after the start of the proceedings of a committee of the National Assembly for the removal of that person.”
Mpofu, however, insisted Mkhwebane should not have been suspended yet as the process had not started.
Ebrahim said all that was required for Ramaphosa to suspend Mkhwebane was the establishment of the committee.
Mpofu did not seem pleased with this answer and spent much time on it, leading to MPs also asking questions about it.
Ebrahim did not waver and stuck to his original answer.
R3.7m – what it cost the Public Protector for Mkhwebane to live securely in comfort
During another line of questioning, FF Plus MP Corné Mulder asked Mpofu whether he was suggesting if the Public Protector received legal advice and acted on it, but it was found to be in the wrong, she should not be held responsible.
Again Mpofu answered yes.
He also continued with his assertion the person holding the title of Public Protector and the Office of the Public Protector was inseparable.
The Western Cape High Court already dismissed this notion.
Paragraph 77 of the judgment that dismissed Mkhwebane’s application for interdicts against Parliament read:
Ebrahim gave a similar answer.
In his main testimony, he said it was “very important to separate the office from the incumbency”, and it was important to “protect the office from the incumbent”.
Several MPs also asked him about this, and again he remained firm.
Ebrahim said:
He added that the office continued when a new person took up the role.
Mkhwebane impeachment: Public Protector mustn’t put own interests ahead of the public’s, committee hears
Several ANC MPs asked him whether he was an expert, and he said he was told not to be too humble. Ebrahim has been working in the field of constitutional drafting for 25 years in South Africa and abroad, including work for the UN.
He said he considered himself an expert.
Mpofu threw his hands up in apparent exasperation.
Several MPs asked about the legality of the committee, and Ebrahim said to his knowledge it was not unlawful.
Mpofu also asked their “strong objection” to the committee’s directives – the rules of how the committee will operate – be noted.
Evidence leader Nazreen Bawa said it was intended to be a live document for the proceedings and the committee chairperson had the power to change it.
Also gearing up for the possibility of litigation after the process, was EFF leader Julius Malema, who found his voice toward the latter part of the meeting.
He said Mpofu was correct to put it on record the process was biased and unfair and they were there under protest.
Malema added he was a committee member, but he had no confidence in it, saying he was participating so if he took it to court on review, they could not say he did not use his opportunity to participate.
Dyantyi said he was satisfied the committee had proceeded by the book, and he would not allow it to be sidetracked.
Before the meeting finally adjourned at 20:15, Mpofu said Mkhwebane’s emails had again been blocked, affecting her preparation for the hearings.
On Monday, he said since her suspension on 9 June, her emails were only unblocked last Thursday.
The hearings will continue on Wednesday at 10:00, with SA Revenue Service (SARS) executive Johann van Loggerenberg expected to testify.
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