Time’s up: Mkhwebane’s play for more rope rejected, report on guilty verdict adopted

22 Aug 2023

After the suspended Public Protector missed her deadline to respond to a draft report about her fitness to hold office, the multiparty committee decided enough was enough and denied her request for an extension and voted to adopt the report, signalling their support for her removal.

The Final Report of the multiparty Section 194 Committee looking into suspended Public Protector Busisiwe Mkhwebane’s fitness to hold office has been adopted.

On Tuesday, 22 August, a majority decision was reached on the final day of the historic inquiry with the ANC, DA, IFP and FF Plus supporting the adoption of the draft. This means they support her removal from office.

Mkwebane missed her deadline of Monday, 21 August to respond to the draft report and on Tuesday sought an extension, which was roundly rejected.

The suspended Public Protector has already been found guilty by the committee on four counts of misconduct and incompetence, confirming findings by an independent panel, which had before it prima facie evidence of such.

Read more in Daily Maverick: Long road to impeachment: Mkhwebane is guilty as charged – here’s a breakdown of the damning findings

“This is today, the final word of the committee on this,” said chair Qubidile Dyanti, signing off on a process which has been bedevilled by delays since it began its work in April 2021.

Last lap

All that remains is for the Final Report – now the property of the National Assembly – to be considered by MPs and a majority vote will decide the advocate’s fate: removal from office or not?

With two months to go before her term ends in October and a R10-million “gratuity” shimmering at the end of the line, it is likely that the litigious Mkhwebane will continue her Sisyphean legal trajectory to challenge this week’s outcome.

Mkwebane’s last-ditch attempt to delay, yet again, by a few weeks, the inquiry while her newly appointed set of attorneys familiarised themselves, was dismissed by the DA’s Kevin Mileham as an attempt “by someone who is racing against the clock” to hold the committee to ransom.

At Tuesday’s sitting, the EFF and the ATM voted against accepting the draft report calling it “irrational” with EFF MP Victoria Mente wishing to place on record that none of the delays owing to Mkhwebane’s legal problems could have been foreseen.

“Unless you are suggesting that this was all engineered,” she said.

Which is exactly what everyone had just set out while correspondence with Mkhwebane’s new attorneys, the “boutique” law firm Motsoeneng Bill Attorneys Incorporated, was read out to the committee.

Motsoeneng Bill demanded “a few more weeks” to familiarise themselves; thereafter they would send the committee weekly updates, the firm informed them.

In response, Dyantyi said Mkhwebane had not even met yet with Motsoeneng Bill and here they were already telling the committee what to do.

“We will not be held to ransom or be dictated to as to how we should do our work or subject the head of a Chapter 9 institution to an inquiry or what our programme should be,” Dyanti told the committee.

We need some bonding time

In a nutshell, after Mkhwebane’s legal bills began to balloon while she and her defender, Advocate Dali Mpofu, headed towards the initial 31 March deadline, she claimed she had been left lawyerless.

Mkhwebane’s personal attorneys Seanego quit, their brief having come to an end, as had Mpofu’s.

The committee managed to secure R4-million to fulfil a Constitutional Court ruling that the suspended PP was entitled to legal representation of her choice.

At first, after accepting Hope Chaane to brief Mpofu (who has been part of the process and cross-examinations from the start), Chaane took gravely ill and was hospitalised. “Indefinitely”, the committee was told at the time.

However, Chaane bounced back and used some of the R4-million to launch an application to have Dyanti recused as chair after allegations of bribery surfaced shortly before the death of ANC MP Tina Joemat-Pettersson.

Then suddenly Chaane “withdrew”, leaving Mkhwebane in legal limbo again, she claimed.

On Tuesday, the committee was informed that Motsoeneng Bill Attorneys had, at 6pm on Sunday, 20 August, written to introduce themselves as the suspended Public Protector’s new legal representatives. A day before her deadline to respond.

Mkhwebane had not yet had time to meet and would be doing so on 23 August, wrote Motsoeneng Bill, and they would need time to come to grips with the report.

Fairness and transparency prevailed

The ANC’s Bheki Nkosi questioned Motsoeneng Bill’s bid for more time. It had been Mkhwebane’s responsibility to brief the attorneys and had she done so, a response from her might have been “positively” considered.

“In view of the fact that we have an obligation to report on this matter, we have also granted her the opportunity to comment. Also, she has always had legal representation,” Nkosi reminded fellow committee members.

The committee had never prevented Mkhwebane from utilising representation of her choice, he said, and it appeared she “does not acknowledge or understand the severity of the charges she faces and the consequences for her and the office of the Public Protector”.

The committee had an obligation to complete its work before Mkhwebane’s term of office expired, said Nkosi.

Fellow ANC MP Doris Dlakude concurred, adding “this is not an open-ended mandate”.

Boyce Maneli, also of the ANC, let rip on Mkhwebane’s attempts to further delay proceedings. He reminded those who had been there or who had watched from the start that proceedings had been fair and transparent.

While Mkhwebane had assisted the committee with regard to cross-examining witnesses, she herself was not willing to do so. Earlier when members did want to ask questions, Mkhwebane had requested they do so in writing and undertook to respond. She never did.

ANC MP Violet Siwela said the committee had been patient and had given Mkhwebane time to appoint legal representation.

“We are not going back. We are moving forward. What we need to do today is adopt the report,” Siwela said.

The DA’s Benedicta van Minnen said that what the committee had seen was “a great deal of legal theatre”. The IFP’s Zandile Majozi said the committee had “bent over backwards and we have done so fairly, it is time to conclude”.

ANC PM Manketsi Tlhape said the Section 194 Inquiry had been “a cornerstone of fairness, when it came to fairness and agreeing our programme was a living document. We accommodated every hiccup”.

Everything had to come to an end,” she said. DM

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We need some bonding time

Fairness and transparency prevailed