Parliament’s section 194 committee probing advocate Busisiwe Mkhwebane’s fitness to hold office has roughly one month left for oral testimony, including the all-important version of the public protector herself.
Even before the committee was constituted, Mkhwebane was litigating against legal provisions allowing for a process to test her suitability for such an important role. But so far, witnesses in this precedent-setting process have rendered with staggering detail the office of the public protector’s dysfunction during her tenure.
The public protector acts as an ombudsperson, leading a constitutionally mandated institution with unique powers to hold the government to account and resolve civilian complaints. The committee was complicated from the get-go. History will show defects along the way, when the first section 194 committee — a parliamentary inquiry into someone’s fitness to hold office and set up under the said section of the constitution — assessed a public protector’s suspected misconduct and/or incompetence.
Already, there are a few obvious potential lessons: provisional suspension should be mandatory, not optional, once the process begins; it may be best to adopt the “narrow” approach to evidence followed by cross-examination; and witnesses should be afforded the armour of a lawyer in their corner.
While the committee has yet to hear Mkhwebane’s full rebuttal to mounting evidence on four charges against her, brought by former DA chief whip Natasha Mazzone, it has heard plenty from her legal counsel, Dali Mpofu SC. He has periodically foretold her version when she speaks under oath.
After oral testimony winds up, in about late September, the committee must draft a report with findings and recommendations. It will share that document with Mkhwebane, consider her input and hand over a final version to the National Assembly. Qubudile Dyantyi of the ANC has the unenviable task of chairing the process.
For the last month and a half, three dozen MPs from 14 political parties have heard from more than 15 witnesses. They include current and former office insiders who worked under Mkhwebane since former president Jacob Zuma appointed her in 2016. President Cyril Ramaphosa provisionally suspended her in June.
Mpofu’s at times bullish conduct during cross-examination — from asking whether a witness could count to 10 to telling an MP to “shut up” while waving a crabby finger at his webcam — has caused alarm among committee members and non-profit organisations alike. Witnesses, too, have appealed to Dyantyi for protection from Mpofu’s ire.
One would expect no less of counsel representing the subject of a process like the section 194 inquiry than to faithfully serve their client’s interests, but with professionalism and restraint. The committee is not a court of law or a judicial commission of inquiry and, in fact, this is to Mpofu’s benefit.
He seems to operate in a no-man’s land where the formalities of a court and its demands on a silk’s conduct are waived. Few judges would countenance Mpofu’s scornful attitudes towards Dyantyi, witnesses and MPs.
There are legal elements at play here: the committee derives from section 194 of the constitution. Advocates are among evidence leaders, and Mkhwebane’s team, witnesses and even some MPs are trained lawyers. There is also substantial case law from the fracas in the public protector’s many court appearances.
Mpofu would have the public believe those detailing encounters with Mkhwebane that reflect poorly on her fitness to hold office are disgruntled subordinates, whose statements are dubious as they were drafted with evidence leader help (which Mpfou did not take up when Mkhwebane’s one-time varsity study buddy and her office CEO, Vussy Mahlangu, sang her praises).
Mpofu perceives a vendetta against the meek and defenceless Mkhwebane, whom at other times he depicts as a most powerful figure being targeted by unfounded scrutiny and reproach. Bona fide motives informed her actions, he insists. They include granting the State Security Agency (SSA) access to the office and insisting on being addressed as madam.
The committee is the first of its kind and, in many respects, offers a blueprint of what should not be done the next time an office bearer stands alleged to have acted so abominably — and, in this case, lawlessly.
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