Cape Town - The Section 194 Committee has turned down a request by Public Protector Busisiwe Mkhwebane to reschedule the testimony of her predecessor, Professor Thuli Madonsela, which is set to be heard on Wednesday and Thursday.
This is after Mkhwebane’s legal team sent correspondence to committee chairperson Qubudile Dyantyi while the inquiry was underway on Tuesday, prompting them to consider her request after the day’s proceedings.
In her letter, Mkhwebane raised six matters, including the testimony of Madonsela, who has insisted on preparing her affidavit.
Seanego Attorneys said the deadline for the submission of her affidavit was February 22, but Dyantyi “unilaterally and without any consultation” granted an extension until February 24.
“That deadline, too, was not met in that the statement was only delivered on Saturday, 25 February 2023, when members of our team were busy preparing to travel to Cape Town and with preparations for the evidence of Ms Mvuyana, which had been interposed for 27 and 28 February 2023.
“Upon proper reflection and after consideration of the statement, which is not only late but also unintelligible in parts, it has become clear that we would be doing our client a huge disservice if we were to proceed with dealing with the evidence of Professor Madonsela on schedule.”
Mkhwebane’s legal team said they have instructions to reschedule Madonsela’s evidence to a later, mutually convenient day.
They requested that the cross-examination of Public Protector South Africa chief investigator Rodney Mataboge, which was set for Friday, to be moved to days set for Madonsela’s testimony.
Other requests included the following:
• Calling further witnesses such as former DA leader Mmusi Maimane, Advocate Sello Maema and PPSA official David Linda;
• The committee to revisit its decision not to summon “material witnesses” – President Cyril Ramaphosa, Public Enterprises Minister Pravin Gordhan and former DA chief whip Natasha Mazzone;
• Request recall of former Sars commissioner Irvin Pillay, former revenue services official Johann van Loggerenberg and former PPSA acting CEO Basani Baloyi, who testified last year to the commission;
• Demand to give reasons if the request for not calling the requested witnesses was not heeded; and
• Objection to muting of Mkhwebane’s legal representative, Advocate Dali Mpofu, by Dyantyi on February 23 and a demand for an unconditional apology from the committee chairperson.
Mkhwebane’s legal team threatened that failure to accede to their demands could result in taking legal action without any further notice.
Following a discussion by the MPs, Dyantyi said the committee programme scheduled for Wednesday until Friday still stood.
“It is also important to acknowledge that there has been confusion created in the main by the legal team of the Public Protector, writing to her asking her to make a statement of all sorts of manner of things when this committee took a decision that it was confining itself to Vrede and CIEX,” he said.
Dyantyi put the blame for the delay on Mkhwebane’s legal team for creating the confusion.
Dyantyi also raised concern with the timing of Mkhwebane raising the matter only on Tuesday.
“If they receive the four-page statement on Saturday, it can't be that whatever concern they have, they only raise it a day before the witness comes to the committee.
“The timing of when the letter arises is problematic. It can't be acceptable,” he said, adding that the matter was not raised on Monday when the inquiry sat, but was only raised on Tuesday after 11am.
He said the proceeds would continue on Wednesday as planned to avoid programme overrun.
“The decision of the committee is that the Public Protector is therefore directed to attend with her team as scheduled tomorrow (Wednesday) and Thursday, failing which, we will continue without her.”
Dyantyi also said Mataboge’s testimony for Friday remained unchanged.
“Members are saying it must be indicated that this is not an open-ended process. We have set a timeline, and that timeline, included in terms of the programme, we expect by March 15 to have the Public Protector until March 31 and then get into report writing.”
He ruled that Mkhwebane must demonstrate the areas and specific issues to be canvassed with further witnesses.
“In the absence of demonstrated relevance of evidence, there is an option of written evidence.”
Dyantyi said they had long passed the issue of subpoenas for Ramaphosa, Mazzone and Gordhan, which formed part of Mkhwebane’s litigation in the Western Cape High Court.
Regarding recalling of Pillay, Baloyi and Van Loggerenberg to testify, Dyantyi said it would be possible if there was new evidence.
“Our decision remains. Instead of providing reasons, she says we must provide reasons for refusing,” he said.
On the muting of Mpofu, Dyantyi said the parliament was a rules-based institution and that its rules were applicable to the committee.
“The directives empower the chair to do the muting. We did it, but the muting is a minimum action you take. We have not taken the maximum action, which is removing a member out of the meeting,” he said, adding that Mkhwebane needed to indicate if she condoned Mpofu’s behaviour and that it was on her behalf.