Suspended public protector Busisiwe Mkhwebane’s legal team had made good on its promise to launch high court proceedings in a bid to oust the chair of her parliamentary impeachment committee and one of its members.
Advocate Dali Mpofu, at the tail end of Wednesday’s proceedings, said papers had been filed and served and the matter had been set down for mid-December.
If his client wins, he says, the inquiry will all have been a waste of time and money. But chairperson Qubudile Dyantyi was unfazed.
“There is nothing in law ... there is no interdict ... and our work will continue,” he said.
Mkhwebane claims Dyantyi has shown “inherent bias” during the inquiry to establish her fitness to hold office. She also claims DA MP Kevin Mileham is conflicted because his wife, DA chief whip Natasha Mazzone, instigated the motion which led to the establishment of the inquiry.
After an application by Mpofu last month — and after legal advice — Dyantyi and Mileham refused to recuse themselves.
Mpofu then sought an adjournment of the inquiry to allow for a high court review of the decision, but when Dyantyi refused this, the advocate “walked out”, followed by the rest of the legal team, claiming the proceedings were “illegal”.
It was a move which was widely believed to mean he was no longer prepared to participate in the proceedings.
Mkhwebane, on the instruction of Dyantyi, then appeared twice again at the inquiry without Mpofu at her side, alleging her lawyers were still on brief but busy with other matters.
On Wednesday, Mpofu was back — and denied staging a “walkout”.
“If we stage a walkout it will be no secret. What we did [on October 27], if you want to be literal about it, is we walked and we did go out. But we did not stage a walkout. The two things are totally different,” he said.
If we stage a walkout it will be no secret. What we did, if you want to be literal about it, is we walked and we did go out. But we did not stage a walkout. The two things are totally different.
— Dali Mpofu SC
“There was no withdrawal. Our mandate [was to apply for an adjournment] which had then terminated,” he said.
He said in his absence the inquiry had turned into a “kangaroo court” in that his client had been forced to participate, and had been “held hostage” in spite of a Constitutional Court ruling she was entitled to full legal representation of her choice.
“You then went even further by interrogating her attorney about discussions which may have taken place between attorney and client,” Mpofu said. “Some of the things that happened over those two days represented the law of the jungle,” he said.
He referred to evidence before the commission detailing the lawyers’, including his, earnings from the office of the public protector.
“It was an abuse of practitioners ... and abuse of black practitioners who have no recourse and no prior warning,” he said. “Wrong figures were placed before the committee ... the rules of common decency and professional ethics would have demanded that if such an abuse was going to be done, they should have been told.
“It has caused national consternation and ruined people’s careers. And maybe even lives. Some of those people might face criminals because they are supposed to have that money in their mattresses and couches if they follow the example of the leadership.”
He said those lawyers named had been “portrayed as thieves and looters of taxpayers’ money”.
“The fact that the chairperson allowed it to happen in this hallowed revolutionary house is something that will be written about in years to come.
“It makes one shudder to think those things are happening under the name of constitutional democracy.”
Mpofu also complained that after hearing evidence from 16 witnesses over 35 days, the chair had given his client only 10 days to respond. He said this was “another clear abuse, but the mighty chairperson has spoken”.
Regarding the recusal review, he said, if successful, the millions of rand already spent on the inquiry would have been wasted because it would have to start afresh.
Meanwhile, several committee members expressed disbelief at Mpofu’s explanation regarding the “walkout” and emphasised that the public protector was appointed by parliament and was responsible to it, “not the other way round”.
They also recorded there was “nothing private about public funds”.
Chair Dyantyi said the committee would sit on Thursday and Friday, as previously arranged.
To Mpofu he said: “Your placing on record, denying the walkout, we note that ... but more importantly and strongly it’s important that we deny and reject the other assertions, the accusation of rights violations, the insinuations of a kangaroo court and the illegality of the committee. All are rejected. We will stay on course and stay focused.
“We welcome the review. It is important to emphasise that nothing stops us in the programme, there is no legal impediment or interdict. We are going to proceed — even as we straddle and multitask,” he said.
It is expected that the inquiry will adjourn until early December for the public protector to answer the allegations and state her case.
Closing arguments are expected in January.
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