Cape Town - Suspended Public Protector Busisiwe Mkhwebane will not be exposed to double jeopardy as she faces a parliament inquiry into her fitness to hold office, Section 194 Committee chairperson Qubudile Dyantyi said on Wednesday.
“The Public Protector is not at risk of double jeopardy. There are no criminal proceedings, civil or judicial proceedings,” Dyantyi said.
He made the statement when the Section 24 Committee met to reflect on its work since they started hearings last week and to consider a letter from Mkhwebane’s legal counsel, Advocate Dali Mpofu.
Dyantyi said Mpofu had raised the issue of double jeopardy consistently during the hearings in respect of Mkhwebane.
During his opening address, he first raised the issue of Mkhwebane being exposed to double jeopardy and again when he cross-examined a former investigator in the Office of Public Protector, Tebogo Kekana, on Monday.
Mpofu had noted that there could be a clash between the committee’s proceedings and the criminal matter that was pending against Mkhwebane, where Kekana gave a statement regarding the CIEX investigation report.
Although Dyantyi was meant to have responded to the double jeopardy issue at the end of Tuesday’s proceedings, he did not do so.
Addressing the committee on Wednesday, he said double jeopardy related to Section 35 of the Constitution that concerned arrested, detained and accused persons not being tried for an offence he or she had previously been acquitted or convicted for.
“These are rights of an accused person, someone facing criminal charges in the proceedings to determine criminal liability.”
Dyantyi also said the inquiry’s hearings were constitutional proceedings, the constitution prescribed to the National Assembly and to them as members of the Section 194 Committee.
“So there is no possibility that the committee we are or Parliament can make a finding on civil or criminal liability. Neither Parliament nor this committee of Parliament can send to jail or require her to pay damages for civil liability,” he said.
Dyantyi also said there was no risk that Parliament would duplicate a determination a future criminal case may make or expose Mkhwebane to two criminal sanctions for the same criminal conduct.
He insisted that the rights of Mkhwebane as encapsulated in the constitution have not been triggered.
“She is not an accused person in front of this committee. That can’t be clearer than coming straight from the Constitution,” he said.
Freedom Front Plus chief whip Corne Mulder said he agreed 100% with Dyantyi and GOOD party MP Brett Herron said he did not think the double jeopardy rule applied in the matter before the Section 194 Committee.
Cape Times