Constitutional Court denies Busisiwe Mkhwebane's leave to appeal impeachment

The Constitutional Court has dismissed former Public Protector Advocate Busisiwe Mkhwebane’s request for leave to appeal the Supreme Court of Appeal's (SCA) decision made in October 2024.

The ruling delivered on Wednesday dismissed her attempt to challenge her protracted impeachment that marked the end of her tenure as a public protector.

The court's decision effectively seals her impeachment saga, originating from the contentious Section 194 inquiry that culminated in her removal from office.

The apex court’s reasoning hinged on the determination that Mkhwebane's application was moot, underlining the absence of a substantive legal scenario that would warrant a court review.

In her application, Mkhwebane reportedly urged the Constitutional Court to sanction SCA judge Visvanathan Ponnan for what she described as an unwarranted attack and abuse of her legal representative, Dali Mpofu.

This was about what Ponnan said regarding Mpofu's litigation style, notably stating that his theatrical gestures had no place in a courtroom.

Mkhwebane, who left the Economic Freedom Fighters for uMkhonto Wesizwe Party, also accused Ponnan of displaying arrogance and being dismissive throughout the proceedings.

In his findings, Ponnan ruled that the appeal surrounding the impeachment process lacked both a proper legal framework and the necessary appellant to advance the case. 

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”.

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 at the time.

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.''

He added that Mkhwebane’s non-renewable seven-year term has run its course.

In October 2024, Mkhwebane suffered another defeat after it was ruled that she was not entitled to the R10 million gratuity from her employer.

The Gauteng High Court Pretoria ruled that there was no legal basis for the payment due to her removal before the expiration of her term in office.

sinenhlanhla.masilela@iol.co.za

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