Public might get a say in Mkhwebane impeachment, but expert warns against opening Pandora’s box

Members of the public may get a say in the parliamentary process looking into public protector Busisiwe Mkhwebane’s fitness to hold office.

According to the terms of reference adopted by the parliamentary committee convened for this process, members of the public may be invited to submit evidence to the special committee.

But a legal adviser was quick to warn that it may be safer for the committee to issue “targeted invitations” as “you don’t want to open a Pandora’s box with every Tom, Dick or Harry who knows nothing about the substance of the matter giving their input”.

Parliament legal adviser Fatima Ebrahim told MPs on Tuesday that section 59 of the constitution creates an obligation on the National Assembly to facilitate public involvement in its committee processes.

While the rules do not dictate the manner in which public participation must be conducted, it is necessary that a reasonable opportunity is offered to members of the public and all interested parties to be informed of the work of the committee and to have an adequate say, she said.

Ebrahim said the committee will have to determine the manner in which it will facilitate public participation, and this may include invitations for written participation, oral submissions and/or targeted invitations for written or oral submissions to people who may be in a position to assist the committee.

Ebrahim said the purpose of public participation will not be to consider any personal views that members of the public may have with regard to the public participation, but to call for evidence that may assist the committee in fulfilling its mandate.

“As such, only submissions which relate to the charges in the motion will be considered,” she said. 

The committee will also use the services of an external evidence leader in its inquiry into Mkhwebane’s fitness to hold office.

MPs initially proposed a “member-led hybrid approach”, but parliament legal advisers suggested the use of an evidence leader on Tuesday. 

According to the terms of reference, the inquiry is inquisitorial and the evidence leader does not act as a prosecutor, with the role limited to presenting evidence and putting questions to the public protector or other witnesses.

While the evidence leader will present the evidence of a witness to the committee, all the committee members will be given equal opportunity to pose further questions. 

The committee will invite people it has identified as witnesses to submit a sworn written statement and to thereafter appear before its meeting if it deems that necessary to answer oral questions. 

In the event an invited witness refuses to submit a sworn statement and/or avail themselves as requested, the committee may use its power of subpoena as provided for in the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act.

All witnesses will be requested to submit sworn written statements, including any supporting evidence, at least seven days before the start of their testimony, provided that the statement and any evidence is limited to the information contained in the motion.

The committee will furnish the public protector with copies of all statements as received and a list of all witnesses it intends calling.

The public protector, or her representative, will be permitted to cross-examine any witnesses.

In the event that the public protector wishes to call a witness, notice of same, together with a copy of a sworn statement by the witness, will be provided to the committee which will provide the public protector with a date and time for the appearance.

The evidence leader and members of the committee have a right to put questions to any witness called by the public protector.

The committee will afford the public protector her right to be heard in her own defence and to be assisted by a legal practitioner or other expert of her choice.

The legal practitioner or expert has the right to participate, in their capacity as representative of the public protector, in the proceedings of the committee, including making opening and closing statements, cross-examining witnesses and raising any matter related to the process, subject to any reasonable time restrictions the chairperson may impose.

Prior to the report of the committee being adopted and tabled to parliament, the public protector will be provided with a reasonable opportunity to make written representations on the findings and recommendations of the committee in line with the audi alteram partem principle of natural justice. Her representations would then be considered by the committee before the report is adopted.

An independent panel headed by retired justice Bess Nkabinde made adverse findings against Mkhwebane after establishing she had a prima facie case of misconduct and incompetence to answer for after a request for such a determination by former National Assembly speaker Thandi Modise. 

The National Assembly last March voted in favour of establishing a special committee, as provided for in section 194 of the constitution, to probe Mkhwebane's fitness to hold office when it adopted the report of the Nkabinde-led independent panel of experts which recommended that such a committee be established.

Parliamentary rules require the section 194 committee to conduct an inquiry, to establish whether the charges are sustainable and to report to the National Assembly.

The committee’s report will have to contain findings, recommendations and reasons and must be scheduled for consideration and debate with appropriate urgency.

TimesLIVE