Africa-Press – South-Africa. The chairperson of the Section 194 committee inquiring into suspended Public Protector Busisiwe Mkhwebane’s fitness for office, Qubudile Dyantyi, has decided not to “voluntarily recuse” himself in the absence of a formal application for his recusal.
The latest attempt by Mkhwebane to remove Dyantyi as the committee’s chairperson comes amid bribery allegations levelled by Mkhwebane’s husband, David Skosana.
Skosana laid a complaint with the police, alleging ANC MP Tina Joemat-Pettersson, who died last week, had approached him to elicit bribes of R200 000 each for herself, Dyantyi and Majodina, to scupper Mkhwebane’s impeachment.
Dyantyi and Majodina have publicly denied the allegations.
Mkhwebane subsequently laid a complaint against the three ANC MPs with Parliament’s Joint Committee on Ethics and Members’ Interests.
She held a media briefing on Tuesday in a Sandton hotel, amplifying the allegations and playing audio recordings in which a voice sounding like that of Joemat-Pettersson could be heard, but nothing directly implicating Dyantyi.
Last Wednesday, when the committee once again couldn’t proceed with Mkhwebane’s testimony as she didn’t have legal representation, Dyantyi said he would consider written applications for his recusal that reached him by Friday at 13:00.
This came as Mkhwebane, the EFF, UDM, and ATM, called for his removal as chairperson.
Friday’s meeting, once again, couldn’t proceed with Mkhwebane’s testimony because she refused to be represented by the State Attorney, despite saying three days earlier that they could brief her counsel. Mkhwebane then said she didn’t have attorneys to lodge a formal recusal application.
“I’ve sent a letter through RMT Attorneys that I won’t be making an application, because I don’t have any attorneys,” she told the committee.
In this letter, Mkhwebane’s attorney Gcwali Makhathini of RMT Attorneys wrote that Dyantyi would be aware that “[you] have been implicated in allegations of criminal conduct involving extortion, bribery and corruption in respect of your capacity as a member and/or the chairperson of the Section 194 committee, made by the late Mrs Tina Joemat-Pettersson” contained in “WhatsApp conversations and audio recordings, in which Dyantyi is purportedly referred to as “one of them” and whom Joemat-Petterrson described as her “guy”.
Makhathini also noted that the allegations are being investigated by the Hawks and Parliament’s Joint Committee on Ethics and Members’ Interests.
“It is against this background that in the past few days calls for your voluntary recusal from the committee, pending the outcome of such investigations, have been made by our client and also by several members of the committee, including Honourable Holomisa, Honourable Zungula, Honourable Malema and Honourable Maotwe.
“Our client indicated that in the absence of legal representation in the committee and the termination of her chosen attorneys’ mandate, she would obviously not have access to the required assistance. She has therefore approached us to advise her on what legal options are available to her.”
In line with their legal advice, Mkhwebane instructed them to request that Dyantyi furnish them with his reasons for not recusing himself voluntarily.
“Depending on the content of such reasons our client reserves her right to approach a court of law on an urgent basis to declare you unfit [to] chair the proceedings pending the outcome of the criminal and parliamentary investigations,” stated Makhathini.
Mkhwebane has previously told the committee she couldn’t afford her own legal representation at the inquiry, because she has been “clobbered” with personal cost orders. She is yet to personally pay those orders.
Dyantyi said on Friday he would respond to this correspondence “as a letter”, in other words, not as a recusal application.
In his response, addressed to Mkhwebane, Dyantyi noted that he had not received a formal, written application for his recusal, as required by the committee’s directives (the rules governing the inquiry).
He said, therefore, “proper attention cannot be given to such a request, given its weighty implications for me, the committee and Parliament, based on a few paragraphs in the correspondence received and media reports, the origins of which are not known, and what appeared to be an incomplete trail of WhatsApp communications”.
Dyantyi said:
“Accordingly, in the absence of a written application, I cannot consider a request that I voluntarily recuse myself, and point out again that at no stage have you been impeded from bringing such written application fully setting out the reasons for such application and evidence to which consideration can be given,” Dyantyi stated.
Dyantyi also questioned Mkhwebane’s reason for not submitting a formal recusal application.
“Nothing precluded you from giving the State Attorney an instruction to brief your counsel of choice to bring any application you deemed necessary, or to use any of the legal teams that are prepared to, and regularly act for you in court proceedings that you engage in. You have not been denied legal representation. You have instead refused to permit counsel to be briefed. In this regard I materially disagree with what is stated by RMT Attorneys, who in fact act for you in other S194 related litigation, that is not paid for by the PPSA.
“It is also noted that there is a contradiction in the RMT letter in that on the one hand it is stated that you cannot bring a recusal application before the committee because of a lack of legal representation but it appears that such legal representation is not lacking for purposes of bringing a court application on an urgent basis.”
In September last year, Mkhwebane brought a formal application for Dyantyi’s recusal, claiming that Dyantyi had been biased against her and her legal team and allowed the process to be procedurally unfair.
Dyantyi refused to recuse himself.
“I do so in the belief that the PP 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 subsequently challenged his decision in court, but the Western Cape High Court dismissed her application. She has successfully sought leave to appeal.
The inquiry has been suffering many delays in the last two months relating to Mkhwebane’s legal costs and representation, and on Friday decided that it would pose written questions to Mkhwebane, and if she chooses not to answer, it would only consider the evidence before it.
Mkhwebane has been waging a war of attrition with the inquiry, including court applications, calling irrelevant witnesses and filibustering by her advocate Dali Mpofu SC.
This meant the process, which was initially scheduled to be completed by September last year, with R4.5 million as Mkhwebane’s legal costs, is ongoing, and her legal costs have ballooned to R30 million.
Mkhwebane’s term of office ends in October.
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