Lindsay Dentlinger2 April 2024 | 10:38

Mkhwebane's refusal to recuse herself sees process to find new deputy PP collapse

A parliamentary legal opinion suggested EFF MP Busisiwe Mkhwebane should have recused herself from March’s interviews over her connections to two of the seven candidates who were interviewed.

Mkhwebane's refusal to recuse herself sees process to find new deputy PP collapse

FILE: Former Public Protector and EFF MP, Busisiwe Mkhwebane (in red), sits as part of the committee interviewing candidates for the deputy Public Protector position on 13 March 2024. Picture: Lindsay Dentlinger/ Eyewitness News

CAPE TOWN - The process to find a new deputy Public Protector has collapsed in Parliament over Economic Freedom Fighters (EFF) MP 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.


- Seven candidates set to be interviewed for deputy Public Protector position

- Deputy PP interviews: Despite links to two candidates, Mkhwebane says she can remain objective

- Deputy PP interviews: Dispute over Busisiwe Mkhwebane's recusal overshadows proceedings

While Mkhwebane disagreed, the committee said it will rather err on the side of caution and avoid any future legal challenges. 
Seven candidates were interviewed for the post last month, previously held by Kholeka Gcaleka, who was appointed as the Public Protector last October.
Mkhwebane’s participation in the search for a new deputy Public Protector was only flagged as a concern on the day of the interviews and not during the shortlisting process a month earlier. 
Mkhwebane also only declared her relationship on the day of the interviews.
One of the candidates, Shadrack Tebeila, is an advocate who represents her pro bono in a human rights case against government stemming from her tenure as the former Public Protector. 
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’s found Mkhwebane had victimised and intimidated.
Parliamentary legal advisor, Zingisa Zenani, said for these reasons Mkhwebane 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."
But Mkhwebane disagreed. 
"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."
The committee said it would now compile a report to the House to explain why the process failed.