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Evidence leaders sum up case against Mkhwebane

Suspended Public Protector Busisiwe Mkhwebane. Picture: Theo Jeptha/ African News Agency(ANA)

Suspended Public Protector Busisiwe Mkhwebane. Picture: Theo Jeptha/ African News Agency(ANA)

Published Jul 26, 2023


Days before the inquiry into the fitness of Public Protector Busisiwe Mkhwebane to hold office meets to draft its report, evidence leaders have submitted a summation of evidence to the inquiry.

According to a statement from Parliament, inquiry chairperson Qubudile Dyantyi expected members serving on the inquiry to be hard at work this week studying the summation of evidence from the evidence leaders.

“The committee is expected to meet on Friday to consider its draft report,” read the statement.

The summation of evidence was released on Monday, the same day Dyantyi refused to recuse himself from presiding over the inquiry.

It came as Mkhwebane, according to Dyantyi, missed deadlines as per the revised programme of the inquiry.

Evidence leaders, advocates Nasreen Bawa and Ncumisa Mayosi, said they presented the summation of the oral, documentary and other evidence that was before the committee in accordance with the terms of reference and directives issued by Dyantyi.

The 711-page document, which is in three parts, covers evidence on Absa lifeboat, Vrede Dairy, CR17-Bosasa, the Sars “rogue” unit, Government Employee Medical Scheme and Financial Sector Conduct Authority, among others.

In their report, Bawa and Mayosi said the process into the inquiry of fitness of Mkhwebane to hold office was a novel one that had to be tailor-made to the Constitution and its context.

“This is the first removal process of a public protector embarked upon in South Africa, and in this regard, and with reference to the evidence that has been before this committee, it bears noting that the South African legal context and regime applicable to the public protector as a constitutional being, are distinct from the Zambian one,” they said.

They noted that were numerous academic articles written worldwide on the ombudsman, but there were no experts on the process of the removal of an ombudsman or a public protector.

Bawa and Mayosi said Zambian ombud Caroline Zulu-Sokoni, who gave evidence at the start of the inquiry, could not assist the committee.

However, constitutional expert Hassen Ebrahim’s evidence was led to extrapolate on the general principles and standards applicable to a public protector, including the concept of “misconduct” and “incompetence” when it came to that office.

The evidence leaders were quick to point out that their role was to present the evidence and put questions to Mkhwebane and other witnesses with the aim of empowering the committee to assess the merits of the evidence in line with its mandate.

They said that according to the inquiry’s directives, affidavits and/or evidence presented by them which formed part of court records could be regarded as being sufficient for its purposes as presented without oral evidence being led.

“The committee may consider affidavits and evidence that have been filed in other proceedings and/ or before other bodies, provided that the evidence leaders and/or the public protector shall be permitted to put forward evidence and/or submissions contextualising the affidavits or evidence in question, and further that such is relevant to the motion that is before the committee.”

Bawa and Mayosi said the inquiry had heard Mkhwebane’s oral evidence on the CR17 and the Sars “rogue” unit matters. They indicated that they had already presented a summary of the court records to MPs on the CR17 case.”

“The evidence leaders further prepared written questions for Advocate Mkhwebane to respond to, but no response had been received by the time this summation was prepared.”

Bawa and Mayosi also said Mkhwebane’s senior counsel Advocate Dali Mpofu did put versions of what Mkhwebane intended to say to various witnesses, and some issues relating to the Vrede reports were addressed by the public protector in passing during her oral evidence.

They also said Mkhwebane attacked the credibility of witnesses, “Messrs Kekana, Samuel and Raedani”, who testified on the Vrede investigation and a number of current Public Protector South Africa (PPSA) employees.

“However, the evidence of these witnesses whom she attacks is corroborated either by other witnesses or by documentary evidence, the contents of which has not been placed in dispute.

“Even as Advocate Mkhwebane has attacked the credibility of these witnesses, she has admitted their versions where, in her view, these support her version.

“For that reason we do not divert from the issues at hand to deal with either the ‘disgruntled employee’ debate or the attack on the credibility of those witnesses who are in the PPSA’s employ.”

Cape Times