Former public protector Busisiwe Mkhwebane said on Wednesday the decision of the Supreme Court of Appeal (SCA) to strike her appeal from the roll with costs was a significant setback.
“In light of the recent judgment by the SCA, I find myself deeply disappointed and disheartened. As a former public protector of South Africa, I lodged the appeal with the hope of seeking justice and clarity,” Mkhwebane said.
She had appealed against the decision of the Western Cape High Court to dismiss her application for the recusal of Section 194 inquiry chairperson Qubudile Dyantyi and DA MP Kevin Mileham when she was facing an inquiry into her fitness to hold office.
But the SCA found that her appeal was “self-evidently dead on arrival”.
Mkhwebane, who is now an EFF MP, said the SCA decision to strike her appeal from the roll marked a significant setback, not only for her but all those who believed in her role as a protector of public rights and accountability.
“This experience has been one of immense disappointment and frustration, revealing a deeply ingrained bias that continues to obstruct genuine justice,” she said.
Mkhwebane accused Judge Visvanathan Ponnan, who delivered the judgment on Tuesday, of displaying arrogance and being dismissive throughout the proceedings. She also blamed her troubles in her fight against her removal from office on others whom she described as her persecutors.
“Judge Ponnan’s attitude further underscores the challenges and biases I have faced in my quest for justice.”
In the judgment, Judge Ponnan said the attorneys instructed to represent Mkhwebane in the appeal were not authorised by her successor, advocate Kholeka Gcaleka.
“The stance adopted by the respondents throughout had always been that Ms Mkhwebane was improperly using the cloak of her office to advance her personal interests in the litigation,” he said.
Judge Ponnan also said Mkhwebane had been removed from office and had not challenged her removal as public protector.
“Despite her challenge before the high court having long been overtaken by these events, Ms Mkhwebane seeks to persist in the appeal.“
She urges this court to enquire into the legality of three interlocutory rulings, made during the inquiry by the Section 194 Committee and she asks for those rulings to be set aside and substituted.”
He added that Mkhwebane’s non-renewable seven-year term has run its course.
“There can hardly be a challenge to any of those decisions now, given that her fixed term of office would in any event have ended in mid-October 2023, had she not been removed. Restoration to office is thus constitutionally and factually impossible.”
Judge Ponnan also noted that unmeritorious appeals, such as Mkhwebane’s, impacted not just the immediate parties and the court but also other litigants whose matters were truly deserving of the attention of the court.
“Those litigants have to wait in line whilst we process frivolous appeals such as this. In the result, the appeal is struck from the roll with costs, including those of two counsel, to be paid by Ms Busisiwe Mkhwebane,” he said.
The judge said Mkhwebane’s legal counsel, advocate Dali Mpofu, who seemed not to be sufficiently well-versed in the appeal processes, was of little to no assistance to the court and did not objectively analyse the case.
“Unless the matter is approached from a detached perspective, a legal representative may well develop tunnel vision, thereby losing all objectivity. Had counsel stepped back apace or had Ms Mkhwebane taken advice from a disinterested member of the bar, schooled in appellate practice, she would have been advised not to pursue this appeal,” Judge Ponnan said.
DA MP Glynnis Breytenach said her party welcomed the court decision.
Breytenbach said the judgment made it clear that Mkhwebane’s attempts to use the judicial system “to further her personal interests” after being lawfully removed from office were wholly without merit.
“This ruling confirms that the actions taken by the Section 194(1) Committee, which investigated Ms Mkhwebane’s fitness to hold office, were lawful and appropriate.
“The DA has consistently maintained that Ms Mkhwebane’s removal was necessary to protect the integrity of the Office of the Public Protector, which plays a vital role in upholding our Constitution and protecting citizens’ rights,” she said.
Breytenbach also said they were particularly pleased that the court awarded costs against Mkhwebane in her personal capacity.
Cape Times