• Amended Directives Issued: The Chairperson of the Committee for Section 194 Enquiry, Mr Qubudile Dyantyi, has issued an addendum to the Directives that govern the committee’s enquiry into Public Protector (PP) Adv Busisiwe Mkhwebane’s fitness to hold office. These amendments provide a clear process for the committee to follow, allowing for questions to be put to the PP in writing, with the option for her to respond either orally or in writing under oath.
• Opportunity for Additional Evidence: The amendments also allow for the PP to submit additional affidavits or documentation in support of her statements, particularly addressing the issue of her Part B statement which was not amplified after proceedings were paused in March. This ensures that all relevant evidence is considered by the committee.
• Clear Timeframes and Fair Process: The Chairperson has set clear timeframes for the submission of written questions to Adv Mkhwebane and has expressed confidence in the fairness of the process. The committee is expected to finalise its work by 28 July 2023, and if Adv Mkhwebane fails to respond or provide a closing argument, the committee will proceed to deliberations and make its findings based on the evidence before it.

In a significant development, the Chairperson of the Committee for Section 194 Enquiry, Mr Qubudile Dyantyi, has issued an addendum to the Directives that govern the committee’s enquiry into Public Protector (PP) Adv Busisiwe Mkhwebane’s fitness to hold office. This move comes after the committee agreed to his proposed way forward in a meeting held on 9 June 2023.

The amended directives contain the details of the process that the committee will now follow due to ongoing challenges that impede its constitutional obligations. The amendments provide for a process whereby the questions of members of the committee and Evidence Leaders will be put to the PP in writing. She may elect to answer some questions orally or in writing under oath. If she fails to answer the questions orally by the date determined by the Chairperson of the committee, it will be presumed that the PP has elected to answer questions in writing by the dates as determined by the Chairperson.

Mr Dyantyi also addressed the fact that Adv Mkhwebane did not amplify her Part B statement to the committee after it was forced to abruptly pause proceedings on 31 March 2023. The amendments therefore provide that the PP may submit any additional affidavits or documentation under oath in support of Part B of her written statement or emanating from the Evidence Leaders’ presentations to the committee that occurred in April, to the extent that such was not already addressed by her in her oral evidence or her written statements submitted to the committee.

The amendments also stipulate that whether or not the PP has responded in writing to the questions posed, or given oral evidence or a combination thereof, she will still be afforded an opportunity to make a closing argument herself, or at her election via a legal representative to the committee orally and/or in writing. In addition, she will be provided an opportunity to comment on the committee’s draft report before it is adopted and tabled in the National Assembly. The dates for all the above were determined by the Chairperson and provided to the PP and members of the committee.

If Adv Mkhwebane fails to answer the questions orally and/or in writing, to provide a written and/or oral closing argument or to provide comments to the draft report, it will be presumed that she has elected not to avail herself to do so. The committee will therefore not be precluded from proceeding to deliberations and making its findings based on the evidence before it.

According to the timeframes set out by the Chairperson, members of the committee have until 21 June 2023 to submit written questions to Adv Mkhwebane, and the Evidence Leaders must submit their questions by 25 June 2023. The Chairperson has indicated that he remains confident that the process as set out is fair and has encouraged the PP to avail herself to the opportunities being presented to her and to take the necessary steps to resolve the issues relating to her legal representation having now been afforded an additional R4 million and the opportunity to utilize the services of the State Attorney, Pretoria to brief her legal representative of her choice Adv Dali Mpofu, SC.

The committee was established on 16 March 2021 to conduct a constitutional inquiry into the PP’s fitness to hold office. The timelines on the way forward are available on request. The committee is expected to finalise its work on 28 July 2023.

Implications of the Amended Directives

The amended directives represent a significant step in the enquiry into the Public Protector’s fitness to hold office. They provide a clear framework for the committee’s proceedings, ensuring that all parties have a fair opportunity to present their case. The directives also take into account the challenges that have impeded the committee’s work, providing a flexible approach that allows for both written and oral responses from the Public Protector.

The directives also address the issue of Adv Mkhwebane’s Part B statement, which was not amplified after proceedings were paused in March. The amendments allow for additional affidavits or documentation to be submitted in support of this statement, ensuring that all relevant evidence is considered by the committee.

The Role of the Public Protector

The Public Protector’s role in South Africa’s constitutional democracy is a crucial one. As an independent institution, the Public Protector is tasked with investigating misconduct in state affairs and public administration. The enquiry into Adv Mkhwebane’s fitness to hold office is therefore of great public interest, with the outcome potentially having significant implications for the office of the Public Protector and the broader political landscape.

Looking Ahead

With the amended directives now in place, the committee’s enquiry can proceed in a structured and transparent manner. The Chairperson has expressed confidence in the fairness of the process and has encouraged Adv Mkhwebane to avail herself of the opportunities presented to her.

The committee has set clear timeframes for the submission of written questions to Adv Mkhwebane, with members of the committee and Evidence Leaders required to submit their questions by 21 June and 25 June 2023, respectively. The committee is expected to finalise its work by 28 July 2023.

As the enquiry progresses, all eyes will be on the committee and the Public Protector. The outcome of this enquiry could have far-reaching implications for South Africa’s constitutional democracy, making this a key event to watch in the coming months.