Cape Town - The Committee for Section 194 Enquiry hearings into suspended Public Protector Busisiwe Mkhwebane’s fitness to hold office has been assured that she is not at risk of double jeopardy despite the fears expressed by her lawyer, Dali Mpofu.
The right not to be subject to double jeopardy is provided for in the country’s Bill of Rights.
The provision says every accused person has a right to a fair trial, which includes the right not to be tried for an offence in respect of an act or omission for which that person has previously been acquitted or convicted.
Speaking at a special session of the committee that was held despite the hearings having been paused until Wednesday next week, chairperson Qubudile Dyantyi (ANC) told members the rights relate to an accused person who faces criminal charges in proceedings to determine criminal liability.
Dyantyi said: “These rights are concerned with multiple processes to acquit or convict, so, if one legal process investigates the same conduct, but does so for a different purpose or to achieve a different end, the rule against double jeopardy is not triggered.”
He said Mkhwebane was not at risk of double jeopardy as the enquiry was not a judicial proceeding but a unique constitutional proceeding that the Constitution prescribes and only the National Assembly may discharge.
Dyantyi said there was no possibility that either the committee or Parliament could make a finding on civil or criminal liability.
“Neither the committee nor Parliament can send her to jail for a criminal offence, or require her to pay damages for civil liability. So there is no risk that Parliament will risk duplicating the determinations that a future criminal court may make, or risk exposing the public protector to two criminal sanctions for the same criminal conduct.”
During the meeting, committee members raised several matters relating to the committee’s terms of reference and directives and Parliament’s rules governing how the committee executes its mandate.
Members were concerned about the manner in which Mkhwebane had responded to the committee’s questions so far and the time allocated for her to do so at a later stage.
Committee member Kevin Mileham (DA) said Mkhwebane’s decision to postpone answering even questions whose answers she had at her fingertips did not serve the interests of justice.
“I would suggest that it’s only where she has to go and look something up or find information that she should be permitted to come back with a written response,” Mileham said.
Mileham also suggested that the committee look into the relevance of questioning so as to avoid going off “in some spurious direction that tends to distract or muddy the waters”.
Committee member Brett Herron (GOOD Party) told committee members who commented that Mpofu’s questioning of witnesses was too vigorous that they should not be overly sensitive about the issue as that was what cross-examination was about.
He said while he agreed that the hearings were not a trial, they had something of a disciplinary hearing style and it was only fair for Mpofu to test the testimonies provided by witnesses.
Meanwhile, National Assembly Speaker Nosiviwe Mapisa-Nqakula has advised Dyantyi to seek legal opinion on the alleged possible conflict of interest in Mileham’s participation in the committee. Mileham is husband to fellow DA MP Natasha Mazzone, a complainant in the matter.
Mapisa-Nqakula’s advice came after a letter from EFF chief whip Floyd Shivambu, in which he asked her to intervene on the Mileham issue and demanded Dyantyi’s removal as committee chairperson.
Shivambu accused Dyantyi of abusing his power and of unreasonable treatment of EFF MP Mantoa Maotwe, who was ejected from the hearings last week after clashing with Dyantyi.
Mapisa-Nqakula told Shivambu she was not authorised to remove a committee chairperson as he was elected by the committee. She said she had understood Dyantyi’s action on Maotwe as an effort to ensure the meeting was not diverted from the task at the time.
The committee, which has held seven days of hearings so far, will resume hearing witnesses next week. It took a break to allow Mkhwebane and her legal team time to prepare for a court hearing next week.