The appellant court found that Busisiwe Mkhwebane has already been removed from office as a result of her impeachment.
Former public protector Busisiwe Mkhwebane will have to fork out legal costs after the Supreme Court of Appeal (SCA) dismissed, and criticised, her “frivolous” appeal application.
On Tuesday, the SCA struck from the roll Mkhwebane’s leave to appeal application against a previous ruling by the Western Cape High Court.
Mkhwebane seeks recusal of Section 194 members
In November 2022, Mkhwebane approached the high court, seeking the recusal of Section 194 Committee chairperson, Qubudile Dyantyi, and committee member, Democratic Alliance (DA) MP Kevin Mileham, from her impeachment inquiry.
Mkhwebane argued that Dyantyi was biased against her and claimed Mileham had a conflict of interest due to his wife being DA MP Natasha Mazzone.
Mazzone initiated the motion to investigate Mkhwebane’s fitness for office in 2016.
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Although Mkhwebane’s application was dismissed by the high court in April 2023, the Economic Freedom Fighters (EFF) MP was granted permission to appeal the ruling in the SCA.
Despite the ongoing legal battle, the National Assembly proceeded with Mkhwebane’s impeachment last September, as there was no interdict or court order in place to stop the process.
SCA judgment on Mkhwebane’s appeal
In a judgment delivered on Tuesday, Judge Visvanathan Ponnan, along with four concurring judges, highlighted that Mkhwebane’s application to the SCA was filed under the name of the Office of the Public Protector, despite the EFF MP pursuing the case to “advance her personal interests”.
“‘Curiouser and curiouser!’, to borrow from Lewis Carroll, is how one may describe the matter,” the introduction of the judgment reads.
“What is more, the application, the subject of the appeal, which had commenced as an urgent application, had been brought in the middle of a process that has since been finalised, and was thereafter followed by no less than three further decisions – none of which have been challenged,” Ponnan said.
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The judge pointed out that the attorneys instructed to represent Mkhwebane in the appeal were not authorised by her successor, Kholeka Gcaleka, on behalf of the Chapter 9 institution.
“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 (and not those of the Office of the Public Protector) in the litigation.”
Mkhwebane has not challenged impeachment
Ponnan further stated that Mkhwebane has already been removed from office as a result of her impeachment, thus, the Section 194 Committee has ceased to exist.
“Not having challenged her removal as public protector (or even attempted to do so), the recommendations and resolutions culminating in her removal thus stand.
“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 enquiry by the Section 194 Committee and she asks for those rulings to be set aside and substituted.
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“But the inquiry is over, the National Assembly has impeached her, she has been removed from office and a new public protector has been appointed,” the judgment further reads.
“Further, in terms of Section 183 of the Constitution, Ms 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.”
‘Frivolous’ appeal struck off the roll
Therefore, Ponnan ruled that as there was neither “an appeal properly before this court, nor an appellant to prosecute it”.
In this event, the judge found that Mkhwebane’s application, described to be “self-evidently dead on arrival“, must be struck from the roll.
“The regret is that unmeritorious appeals, such as this, impact not just the immediate parties and the court (that has to increasingly deal with congested court rolls), but also other litigants whose matters are truly deserving of the attention of this 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,” reads Ponnan’s judgment.
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