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Evidence leaders stay put as Dali Mpofu likens hearing to an immolation of Busisiwe Mkhwebane

Evidence leaders stay put as Dali Mpofu likens hearing to an immolation of Busisiwe Mkhwebane
Advocate Dali Mpofu during the parliamentary inquiry on 29 November 2022 into suspended public protector Busisiwe Mkhwebane’s fitness to hold office. (Photo: Leila Dougan)
Marianne Thamm
By Marianne Thamm
29 Nov 2022
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Without legal representation, suspended Public Protector Busiswe Mkhwebane ‘would have been burnt at the stake’ at her Section 194 impeachment inquiry, advocate Dali Mpofu berated the committee on Tuesday.

Dali Mpofu has consistently argued that his client has been treated unfairly by committee chair Qubidile Dyantyi, and maintains that the entire process is “biased”, a political “witch hunt” orchestrated by the Democratic Alliance (DA) and — the latest — that evidence leaders, Nazreen Bawa and Ncumisa Mayosi, are “racist” and “spiteful”.

Dyantyi on Tuesday dismissed Mkhwebane’s application for their recusal on these grounds and on the advice of Parliament’s legal adviser, Fatima Ebrahim.

Call for secret ballot


mpofu mkhwebane Advocate Dali Mpofu during the parliamentary inquiry on 29 November 2022 into suspended public protector Busisiwe Mkhwebane’s fitness to hold office. (Photo: Leila Dougan)



Mpofu later argued that when the committee finally votes on whether it has been convinced that Mkhwebane, who was suspended by President Cyril Ramaphosa in June 2022, is indeed guilty of incompetence and misconduct and should be impeached, this should be done by “secret ballot”.

Inquiry members will soon have to decide whether Mkhwebane’s failure to reveal her meetings with former president Jacob Zuma and the State Security Agency (SSA) while completing her “Reserve Bank” report constitutes a breach of duty. 

This is one of the complaints highlighted by the expert panel which recommended the Section 194 hearing.

Also, her alleged failure to hold politicians to account in the Gupta-linked Estina scandal, as well as her alleged altering of the final report, has been in the spotlight.

And, finally, members need to consider Mkhwebane’s “CR17 report” which was set aside by the Constitutional Court in March. The apex court found that Mkhwebane had altered the Executive Ethics Code to justify her finding that President Ramaphosa had misled Parliament.

The moment has now arrived for Mkhwebane and Mpofu to finally step into the ring, call their witnesses and defend her position and decisions — but the team has been more than sluggish in beginning the contest.

While the committee has said it had expected Mkhwebane to be first up, Mpofu this week said that he, and not the committee, would decide on the sequence of witnesses. An earlier list of 17 names had included Ace Magashule and Arthur Fraser. Among the heavyweights Mkhwebane hopes to call, according to Mpofu, are Pravin Gordhan, Thuli Madonsela and the President himself.

Old band roadie to the rescue 


In the meantime, Mpofu on Tuesday presented Freddie Nyathela as Mkhwebane’s first witness. Nyathela is the founder of the South African Roadies Association (SARA).

What has this got to do with Mkhwebane’s impeachment? Mpofu finds ways and means, always.

It’s a long, long story which at some point came to rest on Nyathela’s detailed narration of an encounter with the “only black American-led circus, Universoul Circus” in 2001, when the outfit had performed at Gold Reef City.

Nyathela, excited by the work, had negotiated an exchange which ultimately led to the stranding of 22 South Africans in the US in 2004 after they had worked there for 10 months.

SARA had approached the National Arts Council for funding, which had initially been promised, but had never materialised.

Nyathela later approached the Public Protector’s office (PPSA), headed by Lawrence Mushwana back then. The investigation had been going well, as far as Nyathela was concerned, until the arrival of Ponatshego Mogaladi as executive manager of investigations at the PPSA.

Floyd Shivambu’s ‘Top Secret’


Mogaladi previously testified to the inquiry that while she had had limited involvement with Mkhwebane’s investigation into the SA Revenue Service and Pravin Gordhan, she had met with the “complainant” [revealed as the EFF’s Floyd Shivambu], who had handed her a copy of late Intelligence Inspector-General Faith Radebe’s report.

Because it had been marked “Top Secret”, she had not disseminated it as required by law.

Mkhwebane claimed the “Radebe Report”, which has since been discredited and set aside, and on which the PP had based her SARS report, had been dropped off at her offices “anonymously”.

On Tuesday, just before tea break around 3.30pm and after Nyathela had set out his career trajectory since the 1980s, Bawa could be heard remarking, “I won’t say what is happening now”, before the microphones were cut.

Legal fees not protected


On Monday, Mpofu and Mkhwebane made it known that they were making an application [the sixth] for the recusal of Bawa and Mayosi, due to “racism” and misconduct.

The evidence leaders, they charged, had exposed the names of only black legal practitioners and the fees they had been paid by Mkhwebane in her various legal challenges during her turbulent tenure.

On Tuesday, as the hearings resumed, Parliament’s legal adviser Ebrahim said it was the committee that had “directed” Bawa and Mayosi to flight the names. The information was “not protected”, she added, and Parliament had an oversight role in the expenditure of public funds. There was nothing untoward, said Ebrahim, in evidence leaders drafting witness statements.

“It is part of their duties… standard legal practice, and it was stated in Parliament’s advertisement calling for witnesses that it would happen,” she told the committee.

This more or less dispensed with Mkhwebane and Mpofu’s application.

Mpofu fought back hard after the decision by Dyantyi, saying that if Mkhwebane needed to go to court, “we will go, make no mistake”. No one doubted the threat — the duo are serial court-hoppers.

A vuvuzela for Mkhwebane


As far as Nyathela is concerned, Mkhwebane was the “first and only” Public Protector he had dealt with over the years who cared about “the real experiences of ordinary people” and was competent.

It was only Mogaladi who had given him grief, and when he had watched her testimony to the Section 194 committee earlier, he had thought to himself, “here comes that woman again”. It was also Mogaladi who had testified that Nyathela was a serial complainer.

Bawa read out the transcript of Mogaladi’s response to a question on whether she was aware that Nyathela had complained about her.

“Correct, Mr Nyathela complains a lot. Mr Nyathela complains about almost everyone who handles his case in this organisation and everybody, yes,” Bawa read out.

The hearing will continue with Nyathela at 10am on Wednesday. DM

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