There was also visible tension between Mkhwebane’s legal representative Dali Mpofu and Section 194 Committee chairman Richard Dianti as more witnesses who worked with suspended public protector Busisiwe Mkhwebane continued to testify last week. The week ended with a complaint and a threat to Mpofu to apply for Diantia’s possible impeachment or removal.
The Section 194 Committee has been investigating Mkhwebane’s fitness to hold office since July 12. The investigation is based on clear evidence of misconduct and incompetence found by a three-member panel of experts chaired by retired Justice Bess Nkabinde. The report is also based on a motion by the DA to review Mkhwebane’s fitness to hold office.
Tensions erupted between Mpofu and Dianti on Thursday afternoon while Dianti was still on the platform seeking clarity from the executive director of investigations in the Public Protector’s office, Pona Magaladi, who was testifying on the virtual platform.
CHILDREN: “Pause lawyer Mpofu, I am not being kind [to] what are you doing”
MPOFU: “what am i doing”
DZENTSIY: “You know what you’re doing”
DZENTSIY: ” Just refrain from what you are doing. don’t do what you do”
MPOFU: “No, what is it, Chairman, refrain from something I don’t know?”
CHILDREN: “You know what you’re doing, don’t mumble here while I’m on the platform, just stop it. Just stop it.’
MPOFU: “I don’t like what you’re doing either, but I’m keeping quiet.”
CHILDREN: “Shut up, it’s better for you. Mmmm… Miss Magaladi, what… er)
– intervened IPOFU: “Hello, I want to object”
DZENTSIY: ” Against what? »
MPOFU: ” To what you say about what I mumble. I believe that it should be taken away, because it is an insult.”
DZENTSIY: ” You are bothering me, I have been sitting here in front of you since yesterday and today you have never once seen me mumble and interrupt your train of thought and what you are doing…….fxxxx.”
DZENTSIY: “Thank you.”
MPOFU: “I apologize if I disturbed you.”
CHILDREN: “I understand, ..I understand.”
To remove or not to remove muttering
As the dispute between Mpofu and Djanti continued, there were continued calls for the word “mumble” to be abolished and refused to be withdrawn.
MPOFU: “But don’t tell me I’m mumbling. If I was disturbing during the conversation with the Public Defender, I apologize. But you must also never say that I mumble. And you have to take it down.’
DZENTSIY: “Thank you lawyer Mpofu.”
MPOFU: “No, no thanks.”
DZENTSIY: “I’m not taking it off, I’m not taking it off.”
MPOFU: “Why not recall it?”
DZENTSIY: ” ……..That is exactly what you are doing. I don’t take it off. Please mute Mpofu’s lawyer.”
MPOFU: “Why are you yelling Chairman?”
DZENTSIY: “Ok, thanks. Turn off that mic, Advocate… I’m, on, on, on the platform.”
MPOFU: “And what will you say when I’m on the platform and you’re mumbling?”
DZENTSIY: ” Attorney Mpofu, I want you to turn off the microphone and stop talking. I didn’t recognize you speaking.”
MPOFU: “Thank you chairman.”
DZENTSIY: “Thank you.”
Withdrawal or removal of Dentium
On Friday morning, Mpofu took the opportunity to make a statement following the outcome of Mkhwebane’s recent application to abolish the Constitutional Court.
Mpofu spoke for half an hour before the next witness, Muntu Sithole from the Public Protector’s Legal Services Unit, was able to speak. Mpofu has sent a complaint stating that they can apply to have Dientia recused or removed.
Dianthi and Speaker of the National Assembly, Nosiviwe Mapisa-Nkakula, are alleged to have been involved in how the annulment application was handled.
Mpofu also said one of the anomalies was that the Speaker asked Chief Justice Raymond Zonda to speed up the process of hearing the motion to quash the trial as the Assembly was supposed to start with the investigation.
One of the main issues of concern in the application to quash the court was the inclusion of a judge on the panel. The Western Cape High Court ruled in Mkhwebane’s favour, raising concerns about the separation of powers. However, the ConCourt ruled against it.
Concern over the SMS leak investigation
As Mpofu continued to recap Mkhwebane’s court challenges, he also touched on how the courts have also ruled that she is entitled to legal representation during the parliamentary inquiry.
Mpofu went on to talk about the leaked SMS complaint that was sent to Parliament’s Senior Legal Counsel to warn Mkhwebane about the ConCourt’s cancellation.
” On April 24th, a lawyer for the National Assembly and a lawyer for this committee, Breytenbach, received an SMS from a certain Mr. Abramji saying that he had received it, quote-unquote, with the good news that the verdict would be delivered next week . and the public defender’s application will be dismissed. This Chairman’s application was in relation to the second part of the ConCourt decision relating to the judge where there was an application to set aside in relation to it. And that was the issue in the court process that I mentioned, because we basically said to the parliament, to stop (proceeding) the case because it’s pending, it’s going on in the Constitutional Court, among other things. So basically what Mr. Abramji was trying to do is to tell your lawyer and the Parliamentary Counsel (that) don’t worry, the court point will be moot because next week a decision will be given in your favor by the proper authorities,” Mpofu said. .
He says there was an agreement between the parties to refer Chief Justice Raymond Zonda to investigate the leak. He says a joint letter has been written to Zonda, who also spoke in an interview with the SABC, confirming the leak will be investigated.
Mpofu also expressed concern over the way Zondo is handling the investigation into the SMS leak.
” On June 17, the Chief Justice released a report on an investigation said to be led by retired judge (Lex) Mpati. It was surprising on a fundamental level, to say the least. This was the first case in South Africa, or at least anywhere that I am aware of, that we have received an investigation report from a person whose identity and purpose is only revealed at the report stage. Not at the stage of appointment or investigation.”
Mpofu says the latest issue is how the committee welcomed the Constitutional Court’s ruling that Mkhwebane must pay personal expenses when the application was rejected on August 24.
“What is even more important in the triumphant statements that have been made to welcome the personal costs awarded to the Public Protector. We think it is completely out of character for this committee, to the extent that you are speaking on behalf of this committee or speaking for yourself, because we are in the middle of a process that requires all of us to try to show dignity and , at least pretend it’s fair and reasonable. It’s very clear now, and it’s very clear to anyone watching, that this may just be a pipe dream, but I think we all have a responsibility to see it through. So that’s actually our complaint. It may or may not end in a recusal or removal, but we would like you to consider it, not necessarily now, but perhaps at the next meeting.”
Dianthi noted the complaint to Mpofu before Sithole could testify.
“The intention here was for you to record what you have now identified as a complaint. And it is not going to be discussed. I have taken note of the complaint that you made because I have to respect the time that we have set for the witness because we have not started on the platform for 30 minutes now. I will make a ruling on this matter, but I do not want to take up the time of the leader of the evidence. So, you would record the trip in 30 minutes and, at the end, the actual complaint. It is well received, and a decision will be made,” Dzantiy explained.
The public defender named me as the second respondent
Dianti made his ruling after cross-examining Sitolo. He denied his bias.
” If I understand correctly, counsel for Mpofu and the PP believe that the filing of a supplementary affidavit by the Public Prosecutor acting on behalf of the Speaker of the National Assembly and myself as the first and second respondents in the Western Cape Province by the High Court has led to a demotion on my part. Counsel Mpofu is well aware that it was the Public Protector who initiated the legal proceedings to stop this committee under Section 194. The PP team named me as the second respondent. Therefore, in my opinion, it would be unfair and illogical, when in fact I was involved in the proceedings of the PP itself.”
It is not for me to decide whether the Constitutional Court is wrong or right. I cannot be held responsible for the court’s reasoning or decision, despite the fact that you do not disagree with it. A key takeaway for Parliament from this decision is that it found moot the Public Protector’s argument in the High Court that the pending repeal issue prevented that committee from continuing its important work because of the subpoena rule.’
In one of his responses at the end of Diantia’s ruling, Mpofu said.
“We have seen people trying to revive dead witnesses like the biblical Lazarus. And those things that are in our experience. But again, they will be ventilated as and when the need arises to engage in committee work. We cannot expect you to judge yourself or the members themselves in this respect. That’s it, Chair, and for the rest, we’re going to put this matter on the record as a matter of concern, and if and when we go ahead with it, we’ll do it.”
In his ruling, Dzantiy reiterated that the investigation will not have predetermined outcomes.
The inquiry will resume on Thursday next week with further cross-examination of Sithole Mpofu, followed by a question and answer session between Committee members and Sitole.