SCA rejects Mkhwebane’s ‘frivolous’ appeal on Section 194

On By Rgal Nv

Former public protector Busisiwe Mkhwebane will have to pay legal costs after the Supreme Court of Appeal (SCA) dismissed and criticized her “frivolous” appeal application.

On Tuesday, the SCA struck out Mkhwebane’s permission to appeal an earlier decision by the Western Cape High Court.

Dali Mpofu criticized by SCA

In the judgment, Justice Visvanathan Ponnan reprimanded Mkhwebane’s lawyer, advocate Dali Mpofu, for failing to objectively analyze the case.

“Exasperated sighs, soapbox speeches, empty rhetoric, political posturing, theatrical gestures and long, dismissive speeches have no place in a courtroom,” it reads. in paragraph 48 of the judgment.

“To understand the decision-making process, those who practice within this court must have more than just a knowledge of the relevant rules, as well as the established jurisprudence of this court.

“The skills developed in legal research, analysis and writing are an indispensable part of an appellate practitioner’s toolbox. »

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The judge criticized Mpofu for not advising Mkhwebane not to pursue the appeal.

“Unless the issue is approached from a detached point of view, a legal representative risks developing tunnel vision, thereby losing all objectivity.

“If counsel had backed down quickly or Ms Mkwebane had taken advice from a disinterested member of the bar, trained in appeal practice, she would have been advised not to pursue this appeal,” Ponnan said.

Mkhwebane calls for disqualification of members of section 194

In November 2022, Mkhwebane approached the High Court seeking the disqualification of Section 194 committee chair Qubudile Dyantyi and committee member Democratic Alliance (DA) MP Kevin Mileham from his impeachment inquiry.

Mkhwebane argued Dyantyi was biased against her and claimed Mileham had a conflict of interest due to his wife being DA MP Natasha Mazzone.

READ MORE: Mkhwebane cries ‘persecution’ after son’s belongings ‘seized by sheriff’

Mazzone launched the motion to investigate Mkhwebane’s fitness to hold office in 2016.

Although Mkhwebane’s application was rejected by the High Court in April 2023, the Economic Freedom Fighters (EFF) MP was granted leave to appeal the SCA’s decision.

Despite the ongoing legal battle, the National Assembly proceeded to impeach Mkhwebane last September, lacking a ban or court order to stop the process.

SCA ruling on Mkhwebane’s appeal

Ponnan, along with four concurring judges, pointed out that Mkhwebane’s application to the SCA had been filed under the name of the Public Protector’s Office, although the EFF MP pursued the case to “advance her interests personal”.

“’More and more curious!’, to borrow from Lewis Carroll, is how we can describe the case,” we read in the introduction to the judgment.

“Moreover, the request under appeal, which began as an urgent request, was filed in the middle of a now finalized process and was subsequently followed by no fewer than three other decisions – none of them. of which were disputed,” Ponnan said.

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The judge stressed that the lawyers assigned to represent Mkhwebane in the appeal were not authorized by his successor, Kholeka Gcaleka, on behalf of the Chapter 9 institution.

“The position taken by the respondents has always been that Ms Mkhwebane was inappropriately using the veil of her office to promote her personal interests (and not those of the Public Protector’s Office) in the litigation. »

Mkhwebane did not contest dismissal

Ponnan further said that Mkhwebane had already been removed from office following his indictment and therefore the Section 194 committee had ceased to exist.

“Having not contested her dismissal as public protector (nor even attempted to do so), the recommendations and resolutions leading to her dismissal are therefore maintained.

“Although her challenge to the High Court has long been overtaken by these events, Ms Mkhwebane seeks to persist in her appeal.

“It urges this court to investigate the legality of three interlocutory decisions made during the investigation by the Section 194 Committee and requests that these decisions be set aside and superseded.

READ MORE: Busisiwe Mkhwebane entitled to R10 million gratuity, court rules

“But the investigation is over, the National Assembly has impeached her, she has been removed from office and a new public protector has been appointed,” the judge said.

“Moreover, in light of article 183 of the Constitution, Ms. Mkhwebane’s non-renewable seven-year term has come to an end.

“None of these decisions can hardly be challenged at present, given that her fixed-term mandate would have ended in mid-October 2023 anyway if she had not been removed from office. The restoration of power is therefore constitutionally and factually impossible.”

“Frivolous” appeal removed from the roll

Therefore, Ponnan ruled that there was neither “a valid appeal to this court, nor an appellant to pursue it.”

In this scenario, the judge ruled that Mkhwebane’s application, described as “obviously dead on arrival”, should be removed from the roll.

“What is unfortunate is that unmeritorious appeals, such as this, impact not only the immediate parties and the court (which is increasingly faced with congested court dockets) , but also on other litigants whose cases truly deserve the attention of this court.

“These litigants have to wait in line while we process frivolous appeals like this.

“Accordingly, the appeal is struck out with costs, including those of two lawyers, payable by Ms Busisiwe Mkhwebane,” reads Ponnan’s judgment.

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