Johnathan Paoli
The process to find a new Deputy Public Protector has collapsed in Parliament following EFF MP and former Public Protector Busisiwe Mkhwebane’s refusal to recuse herself from last month’s interviews.
The justice committee on Tuesday accepted an in-house legal opinion that Mkhwebane’s relationship with two of the candidates created a perception of bias or conflict of interest, subsequently requiring the MP to recuse herself from the process.
The Portfolio Committee on Justice and Correctional Services commenced with deliberations on the filling of the DPP position, following interviews with seven candidates last month.
Mkhwebane has disagreed with the committee’s findings and said that her participation in the search for a new DPP was only flagged as a concern on the day of the interviews and not during the shortlisting process a month earlier.
Two candidates among the list of seven are at the centre of the contention, following the former PP’s declaration of relations between them and herself.
Advocate Shadrack Tebeila, was an advocate who represented Mkhwebane in a human rights case against the government stemming from her tenure as the former Public Protector.
Mkhwebane challenged her removal as PP in the African Court on Human and People’s Rights, with Tebeila representing her pro bono.
Another candidate, Ponatshego Mogaladi, is the head of investigations in the Public Protector’s office whom Mkhwebane once recommended be fired and whom the court found Mkhwebane had victimised and intimidated.
Parliamentary legal advisor, Zingisa Zenani, said due to the nature of the relationships between Mkhwebane and the two candidates, she should not have participated in their interviews.
“The facts presented do warrant a recusal in the circumstances based on the test of a reasonable apprehension of bias,” Zenani said.
But the former PP disagreed and said she had nothing to hide and was open throughout the process about her relationship with them.
“It’s a question of presenting it as if I’m hiding anything. I came here objectively. I’m participating as part of the collective,” Mkhwebane said.
Portfolio committee chairperson, Gratitude Magwanishe said since most of the parties accepted the findings of the report against Mkhwebane, they had no choice but to call off the process with Parliament expected to start the process again.
He said this was also to protect Parliament from being taken to court over the matter, in light of the recent increase in litigation against the legislature.
“Parliament has already spent money. We need to account in detail why we would not finish the process because failure to do that might amount to fruitless and wasteful expenditure,” Magwanishe said.
The chairperson said that despite the absence of declaration forms in the process, there remained an obligation to declare and to take that declaration into account if it pertains to significant and important information regarding the interview process.
The committee is expected to compile a report to the National Assembly to explain why the process failed.
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