Suspended Public Protector Busisiwe Mkhwebane has accused the chairperson of the section 194 committee, which was established last year to determine her fitness to hold the office, of being unfair and biased in leading the inquiry.
As such, on Wednesday, Mkhwebane brought an application before the committee for Qubudile Dyantyi to recuse himself.
Not only that, but she also wants DA MP Kevin Mileham to also recuse himself, mainly because he is the husband of former DA chief whip Natasha Mazzone, who brought Mkhwebane’s impeachment motion before Parliament. Mkhwebane believes that, for this reason, Mileham is biased.
Addressing the committee on the recusal application, Mkhwebane’s legal representative, Advocate Dali Mpofu, said the application was not something that was done lightly. He said it was something that must be done “as a matter of last resort”, and that they had made “many warnings” to Dyantyi about how he led the inquiry, but he paid no attention.
“I had specifically said that if these things are not addressed, we would consider an application for your recusal or removal, and that was, again, an effort to try and get things back on track because we were under some impression that that could still be done,” said Mpofu.
City Press reported last month that Mpofu had suggested that Mkhwebane may make an application to have Dyantyi removed as the committee chairperson.
This was after what he called the involvement of Dyantyi, who filed an affidavit along with Speaker of Parliament Nosiviwe Mapisa-Nqakula to the Western Cape High Court, following the ruling of the Constitutional Court that dismissed Mkhwebane’s rescission application.
On that basis, Mpofu said that there was no fairness in the impeachment process against Mkhwebane and that there was probably a concluded outcome.He told the committee on Wednesday that last week he also did say that “things might escalate to this”.
Mpofu was referring to a heated exchange between him and Dyantyi last Tuesday, when he said the chairperson would “regret” his conduct towards him.
He said: “Mr Dyantyi, you’re going to regret this. I’m telling you now, your day will come.”
On Wednesday, he told Dyantyi that Mkhwebane had long been “uncomfortable” with his conduct and that if it had been up to her, the application for his recusal “should have happened a long, long time ago”.
“She was uncomfortable with some of the things that happened in this committee as far back as July, and it was the legal team, led by me, that persistently insisted and persuaded her that we had not reached a point of no return on several occasions…”
“So, it was only when things reached the stage where we could no longer persuade the client that her impression about the inherent bias in this process was wrong [that the recusal application was brought forward]. In a way, she won that battle because we kept on saying ‘no, we have not reached that point until we learnt the hard way last week that maybe that point had not only been reached, but it’s been exceeded’.”
According to the recusal application, Dyantyi breached all three standards of the committee, which are fairness, reasonableness and/or transparency.
At the heart of the application is that he allegedly has not led the committee in fairness.
Mpofu said that Dyantyi’s refusal to postpone proceedings last week and his refusal when other MPs had asked that they deliberate on the request “are the matters that I dare say constituted the last straw for us”.
Mkhwebane’s legal team had asked that the committee postpone proceedings to allow for it to prepare for the urgent court matter in the Western Cape High Court last Friday, where she wants the court to rule that she return to work pending the appeal application by the DA and Ramaphosa at the Constitutional Court, with both parties challenging the ruling of the Western Cape High Court that set aside her suspension. Dyantyi initially refused the request.
The legal team also wanted the proceedings to be halted because Mkhwebane had fallen ill and was booked off. In the end, though, the commission suspended its activities and only resumed on Wednesday. In a statement sent out last Tuesday evening, the commission said that it had suspended its activities until Monday to allow Mkwhebane’s team to prepare for her court case and also because she was sick. The statement did not explain why the commission’ stance had changed.
Speaking about the events of last week, Mpofu said: “What happened last week, chairperson … is shocking for various reasons, not because of the alleged threat, which I’ve explained insofar as you can call it a threat or promise, or whatever it was, related to this matter of recusal.
He added that Dyantyi “displayed hostility and impatience of a kind that I have not experienced before”, and “what one might call the most embarrassing display of chairpersonship”.
Mpofu said that “any sensible person” would have accepted when Mkhwebane’s team asked for a postponement to prepare for the urgent court case, but instead Dyantyi wanted him to explain why they had asked for time to prepare.
“...You may have your suspicions that maybe I wanted to go on holiday or whatever, but the one that is what I call the last straw, chairperson, is when you refused to grant the postponement even on the basis of the temporary medical unfitness of the Public Protector,” said Mpofu, calling what Dyantyi did the “harshest display of unacceptable, unlawful, unconstitutional and patriarchal behaviour”.
“I don’t know what the Public Protector is supposed to do if she’s sick. Is she supposed to schedule her sickness according to the whims of the chairperson? No, she had a sickness, she did not have to be subjected to that. Even when I begged you, chairperson, to say, ‘here is a medical certificate’, [you said] ‘no, you cannot display it’,” said Mpofu.
He said any “neutral person” who saw Dyantyi’s “conduct and behaviour” about Mkhwebane’s medical condition would have seen the “crustiest display of lack of ubuntu, empathy, humaneness”.
“...The Public Protector cannot be expected to assume that the person who behaves as you did around that issue … will treat her as a human being. Forget about fairness and all those things, just to be treated as a person. I have no doubt that if anybody that you respect or care for was being impeached and they said they were sick, you would accept it. It’s only because it’s according to your previous statements that it is been done by this incompetent advocate Mkhwebane.”
Meanwhile, evidence leader Advocate Nazreen Bawa rejected claims that the evidence leaders had been given special treatment by Dyantyi.
While other MPs said Mpofu also needed to account for how he has been conducting himself in the inquiry by insulting and bullying MPs and witnesses, ANC MP Jane Mananiso said Mpofu needed to “apply emotional intelligence”.
The committee will meet on Friday to deliberate on the application.