Suspended Public Protector Busisiwe Mkhwebane has made a fresh application for the recusal of Section 194 Committee chairperson Qubudile Dyantyi.
The application prepared by her legal team, which is led by Advocate Dali Mpofu, sets out seven grounds for Dyantyi’s recusal.
These are: bribery, corruption and extortion; pending investigation by the parliamentary ethics committee; pending police investigation; disparaging media statements and interviews, the inquiry proceeding without Mkhwebane’s legal representation; the role of late ANC MP Tina Joemat-Pettersson, and the role of ANC chief whip Pemmy Majodina.
The recusal application, dated July 12, was lodged just two days before the Constitutional Court set aside the Western Cape High Court ruling that found Mkhwebane’s suspension invalid and unlawful.
It is a sequel to the bribery and extortion allegations allegedly made by Joemat-Pettersson in cahoots with Dyantyi and Majodina to Mkhwebane’s husband, David Skosana.
In the recusal application, Mkhwebane’s legal team said no amount of deflection and media silence should ever be allowed to distract the public from seeking answers regarding the strange events which preceded Joemat-Pettersson’s death.
“While it is indeed so that the relevant issues are being duly investigated by other institutions, their relevance to the current issues facing the committee cannot await the outcomes of those important investigations.
“They must be confronted now,” reads the application, which puts part of the blame of the deflection on statements made by Dyantyi where he has stated that Mkhwebane was “playing delaying tactics”.
The application states that the grounds for recusal were mainly centred on the interactions between Skosana and Joemat-Pettersson.
It refers to WhatsApp messages, purportedly between Skosana and Joemat-Pettersson.
“The most relevant parts of the audio recordings will be played at the hearing of this application,” reads the application.
It said the inquiry has no option but to allow for the oral presentation of the application as well as the oral evidence of Skosana.
According to the recusal application, Mkhwebane’s impression was that Dyantyi has further demonstrated bias by amending directives in clear violation of the rules and the Constitutional Court judgment.
“The directives were amended on 9 June 2023 at a time when the Public Protector was not legally represented.”
It said Mkhwebane had rejected “the new unilateral and illegal imposed procedure” to deny her the right to appear personally and in public to give oral evidence.
“This amendment places the Enquiry in contravention of Section 34 of the Constitution which guarantees a fair hearing, read with the rules of the National Assembly.”
Mkhwebane’s legal team said Dyantyi’s alleged involvement in bribery, corruption, and extortion and even potentially the alleged murder of Joemat-Pettersson could not be brushed aside.
There are investigations by the Hawks, the parliamentary Joint Committee on Ethics and an inquest under way into the death of Joemat-Pettersson.
“It is likely that any one of these investigations will result in an adverse finding against Mr Dyantyi. It is equally likely that he may be exonerated,” reads the recusal application.
“Either way, the mere possibility of a negative finding on such serious allegations is sufficient ground for his present recusal, pending such outcomes.”
The legal team said the recusal applications should not be brought lightly and the latest application must accordingly be granted.
“In the present circumstances of multiple and material grounds going to the root of the fairness of the proceedings, it would be both untenable and undesirable to simply brush off these grave concerns and happened.
“That would mount to a serious violation of the rights conferred by the directives, the rules of the National Assembly, the applicable legislation and more importantly the rights and values enshrined in the South African Constitution.”
Cape Times