Organisations sound alarm against harassment of witnesses in Public Protector parliamentary Section 194 inquiry

9 Aug 2022

In an open letter dated 3 August, the Active Citizens Movement and 18 other groups condemned the harassment of witnesses in the parliamentary Section 194 inquiry. The process is intended to determine the fitness of suspended Public Protector Busisiwe Mkhwebane to hold office. Civil society representatives are concerned that ‘attacks’ on witnesses in cross-examination could discourage future whistle-blowers from coming forward.

Civil society organisations have taken a united stand against the intimidation and harassment of witnesses in the parliamentary Section 194 inquiry into suspended Public Protector Busisiwe Mkhwebane’s fitness to hold office.

In an open letter dated 3 August, chairperson of the Active Citizens Movement Pops Rampersad condemned the “extraordinary attacks” to which witnesses had been subjected in cross-examination, and called on the parliamentary committee to better protect them from such experiences in future. The letter was sent to Speaker of the National Assembly Nosiviwe Mapisa-Nqakula and Chairperson of the S194 Committee Qubudile Dyantyi.

“We are making an appeal to the members of the committee to please keep a focus on the work that goes on here,” Rampersad told Maverick Citizen. “I think it’s incumbent upon them, as representatives of the people of South Africa, to protect people who are witnesses or who are whistle-blowers.”

The open letter was endorsed by 18 other groups, including the Organisation Undoing Tax Abuse (Outa), the Helen Suzman Foundation and the family of murdered whistle-blower, Babita Deokaran.

“We’re all different organisations and all of us do different things, [but] it is good to show that we have a united front,” said Advocate Stefanie Fick, executive director of the accountability division of Outa.

“It’s good that civil society realises that … this is an important issue.”

‘Extraordinary attacks’

One witness who has been subjected to harassment during the S194 proceedings is Johann van Loggerenberg, former South African Revenue Service official, according to Rampersad.

During cross-examination on Thursday, 14 July, Advocate Dali Mpofu SC – Mkhwebane’s chosen counsel – brought up Van Loggerenberg’s medical and mental health in questioning.

Read in Daily Maverick: “Dali Mpofu drops mental health and criminal conduct bombs during Van Loggerenberg’s cross-examination”

In a separate incident on Tuesday, 19 July, Mpofu questioned the reliability of whistle-blower and former Public Protector senior investigator Tebogo Kekana during cross-examination, according to a report by Daily Maverick’s Marianne Merten.

“You are not a whistle-blower; you are a whistle-inhaler… whatever the opposite of whistle-blower is,” Mpofu said to Kekana.

Read in Daily Maverick: “Mpofu moves to discredit another whistle-blower, but committee chair draws the language line”

Kavisha Pillay, head of campaigns at Corruption Watch, said that there has been a general hostility towards witnesses who have come forward with information in the S194 proceedings.

“I think all of the witnesses have experienced this, and they’ve been experiencing attacks of a personal nature, of a professional nature.”

The directives governing the appearance of people in the oral hearings indicate that the questions put to these individuals must be relevant to the issue at hand, and should respect the witnesses’ right to dignity, according to civil society’s open letter.

Witnesses should not be subjected to questions that bully, intimidate, harass, gratuitously embarrass or deliberately insult them.

Not a court

The public and politicians need to understand that the S194 process is not a court of law, said Pillay.

“There have been judicial proceedings where the Public Protector has been found wanting, in that there were various cases where they said that she was not acting in a way that was fit or proper or independent, and so on,” she explained.

“And what this inquiry is meant to be doing is to probe that – probe, based on all of these judgments, is this Public Protector fit and proper to hold office. But it seems to be becoming like a pseudo-legal proceeding.”

While Mpofu knows the “ins and outs” of a court of law, the parliamentary team is not as well versed on how a court works, according to Fick.

“I think Advocate Mpofu is using this as a court because he knows how to do it, and… the parliamentary team is just trying to do this process as fairly as possible. And I think somewhere along the line, they’re allowing too much leeway,” she said.

There is a need to probe the veracity of witnesses’ claims and push back when they have no evidence to back up statements, acknowledged Pillay. However, the process should not involve abuse and insults.

Maverick Citizen reached out to the parliamentary S194 Committee about these issues and was referred to a press statement from 20 July, which stated that members of the committee were concerned about the lack of regard with which witnesses had been treated by some of those involved in the inquiry.

“It’s a fine balancing act,” said Dyantyi. “We understand that witnesses must be cross-examined. We further understand the rights of witnesses, the members of the committee, the evidence leaders and that of the Public Protector and her legal team.

“We need to balance the rights and responsibilities, and navigate them in such a way as to ensure a credible process.”

The committee resolved to better enforce its directives going forward.

Protecting whistle-blowers

Whistle-blowers often suffer due to their decision to speak out, whether due to harsh treatment, legal fees or mental health issues, according to Rampersad.

“We are also aware that South Africa is beset with corruption, malfeasance and the after-effects of state capture,” he said. “I think what we are saying is that, unless whistle-blowers are protected, they will be less likely in future … to want to come forward.”

The poor treatment of witnesses in the S194 inquiry could discourage future whistle-blowers from coming forward, said Pillay.

“I think it speaks to a broader culture of how whistle-blowers and people who are wanting to expose wrongdoing and misconduct are generally being treated in society.

“Obviously, nobody is above reproach. But I do think ... what’s actually happening is really dangerous – not just for this inquiry, but just in terms of coming forward with information, in speaking out against something.”

Support for the Public Protector has become a factional issue within politics, she continued. However, the parliamentary S194 Committee needs to take a collective approach to protecting witnesses and calling out persistent abuse.

“The committee needs to make a commitment to future witnesses that they will be protected.” DM/MC

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Not a court

Protecting whistle-blowers