Committee for Section 194 supports its chairperson’s decision not to recuse himself

28 July 2023

The Committee for Section 194 Enquiry into Public Protector (PP) Adv Busisiwe Mkhwebane’s fitness to hold office, supported the decision of its Chairperson, Mr Qubudile Dyantyi, not to recuse himself.

Its support follows Mr Dyantyi’s detailed response earlier this week to Adv Mkhwebane’s second recusal application which he said holds no merit. All members of the committee who participated in the discussions regarding Mr Dyantyi’s decision indicated their full support for him to continue in his role.

They made it clear that the basis of the allegations made in the recusal application doesn’t form part of the motion before the committee and the allegations are already being investigated by other bodies.

On a question of clarity by one of the members of the committee about whether Adv Mkhwebane was asked to comment on the summation of evidence by Evidence Leaders, committee legal adviser, Ms Fatima Ebrahim, said the summation was shared but the PP was not invited to make a comment. Ms Ebrahim reminded members of the committee that Adv Mkhwebane had a choice to make closing arguments, but she maintained that she doesn't have legal representation despite the availability of Chaane attorneys appointed as attorneys of record for purposes of briefing counsel.

To date Chaane Attorneys have indicated they cannot brief counsel until they familiarise themselves with the record. However, counsel was briefed for the limited purpose of bringing the recusal application but not to deal with the merits of the Section 194 Enquiry.

The committee then commenced with its deliberations on its draft report. It resolved to work on the charges in the motion in order to draft a comprehensive report. Regarding the charge of misconduct relating to the Reserve Bank/CIEX matter, several members of the committee concluded that the PP held “secret meetings” with the Presidency as well as with the State Security Agency (SSA) although no records of such meetings were made available.

The majority of members of the committee who participated in the discussions felt that the PP failed to disclose in her report that she met with the Presidency and also failed to record the meeting, as was the norm in the office, and that was problematic. Several members of the committee also agreed that Adv Mkhwebane failed to disclose a meeting with the SSA to the court.

Part of the first charge of misconduct against Adv Mkhwebane is that she broadened the scope of the CIEX/Reserve Bank investigation without giving notice to any affected person or providing an explanation. Members of the committee agreed that the scope initially excluded the role, function and mandate of the Reserve Bank, but it was included in the report. It materially affected the outcome of the investigation and had far reaching and serious consequences for the economy.

On the question of whether Adv Mkhwebane failed to honour an agreement between the PPSA and the SARB to provide the final Lifeboat Report to the SARB five days before it was publicly released, members of the committee agreed that the charge was not sustained by the evidence before it.

They felt strongly that from the onset the PPSA was not willing to investigate the Vrede matter. The testimony before the committee that Adv Mkhwebane spoke to former Free State Premier Ace Magashule, who was implicated, privately, and that the GuptaLeaks are not investigated. The committee indicated that there was no rationale in not investigating the complaint and the evidence before it indicates that Adv Mkhwebane misrepresented her reasons for not investigating and that there was an element of dishonesty.

Regarding the question of whether Adv Mkhwebane materially altered the remedial action contained in that provisional Vrede report prepared by her predecessor, Prof Madonsela, the committee agreed that there is no such provisional report by Prof Madonsela and it would be unfair to find that Adv Mkhwebane altered the provisional report. However, it was noted that she may have misrepresented this to the court which, based on the evidence before it, believed that Prof Madonsela had issued such a report. It was further noted that Adv Mkhwebane failed to file draft versions of the Vrede report as part of Rule 53 Record.

On the question of whether explanations Adv Mkhwebane gave under oath for her failure to investigate the Vrede matter were contradictory, the committee agreed there were contradictions and her version has not been consistent. Members of the committee concurred that the PP failed the “Gogo Dlaminis” or the vulnerable, which she always claimed to have been protecting by not properly investigating the Vrede-matter.

The committee will resume its deliberations on the draft report on Sunday. The committee was established on 16 March 2021 to conduct a constitutional enquiry into the PP’s fitness to hold office. Committee documents can be found at Committee for Section 194 Enquiry - Parliament of South Africa

Issued by Rajaa Azzakani, Media Officer, Parliament, 29 July 2023