Ponatshego Mogaladi
The interviews of candidates for the deputy public protector (PP) post were thrown into a tailspin on Wednesday when the DA raised issues of conflict of interest and perception of bias against EFF MP Busisiwe Mkhwebane.
The party told the justice and correctional service portfolio committee that Sekgame Shadrack Tebeile and Public Protector South Africa executive manager for investigations Ponatshego Mogaladi have some sort of connection with Mkhwebane.
This as the justice and correctional services committee was set to interview the first candidate after they held a closed session.
DA MP Glynnis Breytenbach said Tebeile is acting pro bono for Mkhwebane, while Mogaladi was disciplined by Mkhwebane and her dismissal was overturned by the Labour Court.
“I see a conflict in both of those matters and it is unavoidable and I believe that conflict will place at risk these entire proceedings.
“I am sorry to raise it now. I expected honourable Mkhwebane to recuse herself out of her volition and send somebody else, (but) she is here.
My concern is that the process will be tainted by that fact,” Breytenbach said.
This prompted the committee to seek legal advice from the parliamentary legal service on how to deal with the matter.
In her response, Mkhwebane questioned why the DA raised the matter at the beginning of the interviews as they had not done so during the meeting where they shortlisted candidates.
She said in the interviews for the Human Rights Commission, there were a number of candidates that had worked with some committee members. “On Tebeile, I was going to declare. He believes in issues of objectivity. That is not going to influence the process in any way.”
Mkhwebane confirmed that Mogaladi underwent disciplinary proceedings while she was the public protector and disputed that she had been dismissed, while being asked to give reason why she should not be fired.
“It is just an unnecessary issue for them to raise as if I am a decision maker and I force myself that you must appoint advocate Tebeile or not to appoint Ms Mogaladi,” she said.
ANC MP Xola Nqola said they would have preferred the matter to have been raised in the closed session and then suggested that they proceed with the second candidate on the list while the legal opinion was awaited.
Breytenbach disagreed on proceeding with the interviews at that stage until the matter was cleared.
“If there is perception of bias, that bias taints the entire process. The biasness spreads to everybody and the process can’t proceed in the face of bias.”
However, the committee proceeded to interview the candidate second on the list, Limpopo Human Rights Commission manager Azwindini Mavhidula, before receiving legal advice.
Parliamentary legal adviser Zingisa Zenani said the rules of Parliament provided that an MP make a declaration when there was a conflict of interest in line with the code of conduct or recuse him or herself when a matter was considered.
She also said advocates were required in terms of the code to render pro bono services and there was nothing untoward in the case of Tebeile.
Breytenbach said the legal advice was entirely flawed.
“In circumstances a person appears pro bono for a member and there is financial benefit in that relationship, to interview a person for a job is not only a clear conflict, there is perception of bias. It is inconceivable that it can’t be seen,” she said.
During the course of discussions, committee chairperson Bulelani Magwanishe noted that some of the new issues raised were not part of the brief given to the legal services.
When Mkhwebane was asked if she would recuse herself, she refused.
“I am here to make sure that I assist the committee. I still repeat that I am not a decision maker. I won’t impose a candidate on you,” she said before accusing the DA of being defenders of Mogaladi.
“I won’t recuse myself because I see no need. The DA should have raised this at the beginning,” she said, adding that DA MP Kevin Mileham had sat on her inquiry into her fitness to hold office without disclosing her partner who brought the motion against her.
The committee agreed to give an opportunity to the legal services to prepare comprehensive legal advice by Monday and continue with interviews.
Magwanishe said the majority view was that they continue with the interviews and finalise everything after the interviews having received a well-considered legal opinion. “There are issues that are going to be beneficial not only to this committee but to Parliament.
They need to be properly researched and that we get proper legal advice from the legal division,” he said.
Cape Times
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