Busi in bid for the recusal of chair

COUNSEL: APPLICATION BASED ON ISSUE OF FAIRNESS

Parliamentary inquiry is assessing public protector’s fitness to hold office.

As suspended public protector advocate Busisiwe Mkhwebane yesterday lodged an application for Section 194 Committee chair Qubudile Dyantyi to recuse himself from the parliamentary inquiry into her fitness to hold office, a legal expert has warned that – should Dyantyi rule against the bid – the matter could be a long haul.

While MPs asked to apply their minds to the presentation by advocate Dali Mpofu, representing Mkhwebane, on reasons for Dyantyi to be recused, Accountability Now director advocate Paul Hoffman cautioned that the hearing could go to the high court for an appeal review, with the public protector likely to be granted “another appeal until the expiry of her term”.

Mpofu said: “In support of the recusal application relating to the honourable Dyantyi, we raise the primary grounds dismissed in sections B1 to B2, which ought to provide sufficient for the granting of the relief sought.

“Thereafter, a brief expression of the applicable legal test to be applied will be given, with reference to some of the relevant decided cases from our courts, including the Constitutional Court.

“The committee must ensure that the inquiry is conducted in a reasonable and procedurally fair manner, within a reasonable timeframe.

“In terms of the remarks made and warnings repeatedly issued, on behalf of the public protector since the start of the inquiry proceedings on 11 July, and more specifically on 26 August and 13 September, indications were made directly and indirectly that serious consideration was being given to the contemplated application for the recusal of the chair.

“None of these warnings were heeded.

“Instead, the situation was worsened and further aggravated by the conduct of the chair. The day has now arrived to make good on those warnings.

“In the same breath complaints, which were brought to the attention of the committee and chair, regarding the inherent bias of the honourable Kevin Mileham, were not adequately entertained and were ultimately overruled by the chair.”

Mpofu said: “This then is the recusal application which has been threatened since 26 August in the hope that some improvements would be observed.

“In actual fact, none of these serious warnings were heeded and instead the situation worsened and deteriorated to the present intolerable levels where it is impossible to continue with the inquiry before this application is resolved one way or the other.

“The unfortunate reaction was to generate and fuel fake outrage about the warnings issued.”

The application, said Mpofu, “has been compiled at the instruction of the public protector, which will be confirmed at the relevant sitting of committee”.

“In terms of the rules, the committee must operate according to the standards of fairness, reasonableness and transparency. In the view of the public protector, the chair has breached all three standards. However, this application is largely based on the compulsory standard of fairness.”

Mpofu said it was “not easy to define fairness and unfairness”.

“It is however, very easy to identify or perceive unfairness and injustice when it is directed at one. The legal standard of fairness derives from the well-established two rules of natural justice.”

The hearing continues.