The parliamentary committee investigating misconduct charges against suspended public protector Busisiwe Mkhwebane on Tuesday decided to dismiss her request that it subpoena President Cyril Ramaphosa to give evidence in the section 194 enquiry into her removal from office.
Mkhwebane’s legal team has signalled since the outset that it wanted Ramaphosa to be called as a witness and requested that he be subpoenaed after he declined to appear willingly last month.
The majority of the committee resolved that a 13-page legal opinion by chief parliamentary legal advisor Zuraya Adhikarie clearly indicated that it was not necessary and cautioned against calling the president unless it was essential to determine the veracity of the charges Mkhwebane faced.
Her legal counsel wrote to Ramaphosa on 19 July to request that he appear before the committee to answer questions on four subjects, including his decision to suspend her some six weeks earlier. Mkhwebane has insisted that bias prevented Ramaphosa from having the power to suspend her, given that he was the subject of a number of investigations by her office.
Other subjects included Ramaphosa on the legal review of her report on funding for his CR17 campaign, and a number of allegations, including that she perjured herself, and his alleged stance that she should not be allowed to use the legal representatives of her choice in their ongoing litigation.
The state attorney responded on behalf of the president, to the effect that the request did not meet the threshold of relevance.
He also advised that the matter of her suspension was before the courts and the committee could not reconsider other legal processes on which the courts had pronounced with finality.
Regarding the allegations of perjury, Ramaphosa said these had been made by his attorneys in court papers and not by himself. He denied that he had tried to limit her choice of legal representatives.
Mkhwebane’s lawyer, Advocate Dali Mpofu, then wrote to the chairman of the section 194 committee, Qubudile Dyantyi, to ask that it subpoena the president.
His letter narrowed the proposed scope of questioning to the “CR17 or Bosasa case which resulted in the courts making certain remarks about the public protector”.
The constitutional court in July last year upheld a high court decision to set aside her report that concluded the president had misled parliament about a donation from Bosasa to his campaign to become ANC president and should face money-laundering charges.
The majority ruling by justice Chris Jafta also inferred that she may have acted in bad faith in misconstruing the executive ethics code to reach an adverse finding and said the severity of this and other errors was cause to question whether she understood what the law demanded of her when investigating complaints.
Mkhwebane has since filed a complaint against Jafta, alleging that he had breached the code of judicial conduct and violated her rights to dignity and reputation.
The charges of misconduct and incompetence in the motion for her removal are in part informed by the evidence in the court review of her report on the CR17 funds.
The rules of the committee allow it to subpoena witnesses and the legal opinion on Mkwhebane’s request notes that she may request it to do so, if a person she has asked to testify refuses.
But it added that serving summons on someone other than in a court process was an extraordinary step and should only be done when “objectively necessary”.
It said the evidence of the president on the CR funding was part of the court record in the legal review of Mkhwebane’s report and was readily available. Moreover, Ramaphosa was not involved in the drafting of the report and it is that process that forms part of the committee’s inquiry.
Adhikarie also cautioned against unnecessarily embroiling the president in the current parliamentary process, given that in terms of section 194(3)(b) of the constitution he would be compelled to fire her should the National Assembly adopt a resolution calling for her removal.
“The president may have an executive function to perform after the parliamentary
process and therefore should not lightly be drawn into any preliminary stages.”
That said, she added, there was no legal impediment against calling Ramaphosa and the committee should weigh whether his evidence would help to determine the veracity of the charges.
The Good Party’s Brett Herron suggested that Mkhwebane should be allowed to submit further motivation as to why the president’s testimony may be necessary. He said the committee should meet a high threshold of fairness, given that it could take the severe step of recommending her removal.
However, he found himself overruled, with the ANC majority and members of other opposition parties saying, on their reading of the facts and the legal opinion, this was not necessary, and risked delaying the work of the committee.
Corne Mulder from the Freedom Front Plus said Mkhwebane had already clearly set out why she wanted the president to appear.
“I think the legal reasoning is absolutely clear in the opinion we have received and I do not think there is any need for the president to be summonsed.”
Doris Dlakude, the ANC’s deputy chief whip, agreed, saying: “The president is not a witness in this regard and it will be irrelevant for this committee to call the president to come and appear.”
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