Mkhwebane to launch another recusal application against Dyantyi

Suspended public protector Adv Busisiwe Mkhwebane says her lawyers will launch another urgent recusal application against section 194 inquiry committee chair Richard Qubudile Dyantyi. She also wants  the committee to deal with the alleged involvement of a committee member or members in an alleged corruption scandal and/or the death of ANC MP Tina Joemat-Pettersson.

Mkhwebane announced on Wednesday that she intends to request her lawyers to accept a limited brief so that they can bring and argue the recusal, and if Dyantyi “predictably” refuses to recuse himself as before, they will escalate the matter to court.

She has accused Dyantyi and ANC MPs Pemmy Majodina and the late Joemat-Pettersson of bribery, extortion and corruption.

“Previously the court abdicated its responsibility to deal with the recusal issue and incorrectly held that the issue must be raised at the end of the inquiry,” said Mkhwebane.

She lodged a notice of appeal to the Supreme Court of Appeal (SCA) on Wednesday, after the high court in Cape Town “recognised that a different court would find differently” and granted her leave to appeal to the SCA.

Mkhwebane has also charged that the entire impeachment process was “irredeemable tainted by illegality” due to the continuation of Dyantyi and DA MP Kevin Mileham’s membership of the committee. She had previously approached the court applying for Dyantyi and Mileham’s recusal.

The court in its judgment said it would not be appropriate to permit a piecemeal review of proceedings. Only in rare cases where grave injustice might otherwise result, would a court entertain a review before the conclusion of proceedings. On review, the court granted Mkhwebane’s application for leave to appeal to the SCA.

The embattled public protector has rejected the section 194 committee’s public statements last week that she has missed its deadlines and was “unwilling” to engage her legal representatives in spite of the legal funding problem having been “resolved”.

She labelled the statements “deliberate distortions and untruths”.

Mkhwebane argued that the “alleged” deadlines emanated from the “illegally imposed” new procedure, which she said was unilaterally introduced and imposed by Dyantyi when she appeared before the committee without legal representation.

“Even then I told the committee that I rejected the proposed new procedure. It is unheard of to conduct a fact-finding or disciplinary enquiry without oral evidence. To do so after more than 25 witnesses, all of whom gave oral evidence in public, makes a mockery of a process which is meant to be fair and reasonable,” she said.

Mkhwebane said the deadlines were unenforceable for being unreasonable.

She said it was irrational to expect her to respond to “such a crooked procedure” but also to deal with so many questions in a short space of time and at a time when the counsel of her choice was not on brief. She said more than 1 000 written questions have been asked by the evidence leaders and members of the DA, ANC, Freedom Front Plus, ACDP and GOOD parties.

“To put the matter in its proper perspective and even assuming that each question can be averagely answered in one-and-a half to two pages. I am expected single-handedly to produce a document longer than the Holy Bible in the space of about one week. This is sheer absurdity.

“It is clear that the committee has sacrificed all notions of fairness at the altar of conducting a rushed and shoddy and remaining within the arbitrary budget,” she said.

Dyantyi told TimesLIVE that any unfairness Mkhwebane raises was self-inflicted, saying she chose not to cooperate with the committee.

“When she says this is unfair, it's a self-inflicted unfairness because she chose not to respond to the deadlines, and to anything else. She must deal with that,” he said.

Dyantyi said Mkhwebane had from the first day of the process regarded it as illegal, unconstitutional and a kangaroo court.

“She's gone to court for all those issues and there is not a single court that has found in her favour about this being illegal and unlawful. She is creating another sideshow and we are not interested in sideshows,” he said.

He said he had been waiting for her recusal application for about four weeks, but it has not been coming.

“She's been threatening to do a recusal application, I even gave her options and told her a long time ago to write it, I'm still waiting.”

With regards to the missed deadlines, Dyantyi said he wrote a detailed letter to Mkhwebane saying they could do the process orally or in writing. June 19 was the deadline for her to indicate whether she prefers to answer questions orally.

“She chose to ignore us and did not respond to that, that's the first deadline she missed.”

The second deadline was June 22, the date the committee expected Mkhwebane to state any other issues she wanted to put forward, including questions about meetings where evidence leaders briefed the committee on the evidence that had been presented.

“In the letter, we said, if she needs any assistance, evidence leaders and the secretariat are there to help her. She can't complain about lots of questions because we said ‘shout if you need assistance’. We gave her that option.”

TimesLIVE

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