Q&A

MATHOLE MOTSHEKGA , the chairman of parliament’s justice committee, this week resisted calls for an inquiry into public protector Busisiwe Mkhwebane’s fitness for office. Chris Barron asked him . . .

Why are you resisting an inquiry?

We’re not resisting an inquiry. The speaker referred the matter to the committee for consideration. The first step was to give the chief whip of the DA an opportunity to lay the complaint, and that was done. The rules of natural justice require that you must hear both sides.

Isn’t that the point of an inquiry?

It’s not.

Wouldn’t an inquiry give her a chance to put her side?

That’s not how due process works. The first step is for the committee to satisfy itself that there is a need for an inquiry. It cannot make that determination without giving the public protector an opportunity to respond. Only then can we decide if an inquiry should be held. We put the two sides on the scale, and, on the basis of which is weightier, decide whether to hold an inquiry.

So in effect you’re going to be weighing what the courts have said about her against what she says about herself?

We are parliament, the court is court. We respect the court decisions, we take them into account, but we also have our independence as parliament. We will use what the courts have said and what she says. Another issue is that she is appealing against other findings of the court because it was a high court, not the highest court. We cannot take it that what the high court said is what the [appeal] court and Concourt would say.

Wasn’t the court’s finding — that she overreached her powers, showed poor understanding of the law, sacrificed her independence and was ignorant of her constitutional duty — upheld on appeal by a full bench?

It was. Even judges make mistakes. That’s why you have the Concourt.

Isn’t it your constitutional obligation to hold the public protector to account?

We equally have an obligation to listen to all sides.

So why haven’t you asked her for her side?

We haven’t had time to allocate for this.

Didn’t the speaker refer the matter to you last year?

No, this year. But whether it was last year or this year we had the opening of parliament, budgets . . .

When a full bench of the high court overturned her findings on the Bankorp/Absa matter, shouldn’t you at that point have asked her to explain?

We respect the right of anybody against whom findings are made to exhaust all remedies. If we act we may be interfering with her right to lodge an appeal.

Oversight is not just oversight over the public protector. We oversee many other Chapter 9 institutions. We have a backlog of legislation. Our plate is full.

Are you saying you lack the capacity to perform your constitutional oversight role?

We don’t lack the capacity, but we are not only overseeing one institution.

Didn’t you say when dealing with Thuli Madonsela that only those with a narrow political agenda believed the public protector couldn’t be subjected to probing oversight?

I was not dealing with the person of the public protector but with a question of law.