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CASE NOTE: THE PUBLIC PROTECTOR OF SOUTH AFRICA v THE CHAIRPERSON OF THE SECTION 194(1) COMMITTEE AND OTHERS
Issued by Alfred Mahkuntsu on behalf of the FW de Klerk Foundation on 11/10/2024
Introduction:
In a judgment handed down on 1 October 2024 the Supreme Court of Appeal (“SCA”) struck the former Public Protector’s appeal against a Western Cape High Court’s decision from the roll. This case note will look at the facts, issues and the applicable law the Court referred to. It will then look at the Court’s application of said law to the facts and issues at hand to explain why the Court reached the conclusion it did.
FACTS:
Adv Busisiwe Mkhwebane was appointed as the Public Protector in October 2016. The Democratic Alliance’s (“DA’s”) Chief Whip submitted a motion calling for an inquiry into her removal, in February 2020, because of allegations of misconduct and incompetence. (This inquiry was to take place in terms of section 194(1) of the Constitution.) Following a preliminary assessment by an independent panel in 2021, the matter was referred to a parliamentary committee (the “section 194(1) committee”) which investigated the grounds for her impeachment. Based on this committee’s recommendations, more than two-thirds of parliamentary members voted on 11 September 2023 to adopt a resolution removing Adv Mkhwebane as the Public Protector. Two days later, on 13 September 2023, the President removed her from office. He appointed Adv Kholeka Gcaleka as her successor.
On 7 November 2022, Adv Mkhwebane applied to the High Court in the Western Cape to challenge various decisions made by the section 194(1) committee. She argued that two of the committee’s members – namely Hon Qubudile Richard Dyantyi (ANC MP and the committee’s chairperson) and Hon Kevin Mileham (DA MP) – should recuse themselves, because of alleged bias and conflicts of interest. However, the High Court dismissed her application. She then appealed to the SCA in the name of the Public Protector. Adv Mkhwebane’s attorneys were then challenged to prove they were duly authorised by the current Public Protector to initiate the appeal. They then filed papers in terms of Uniform Rule 15 to substitute parties. I.e. to change the party bringing the appeal from the Public Protector to Adv Mkhwebane. (The Uniform Rules of Court govern legal proceedings in the High Court between parties to ensure fairness.)
ISSUES:
The main issue was whether Adv Mkhwebane could use Uniform Rule 15 to change the party that was bringing the appeal. Another issue was whether the appeal was moot. (I.e. where a judgment would only answer a theoretical question, but have no practical effect.)
APPLICABLE LAW:
The primary legal framework involved includes:
- Uniform Rule 15 provides that this rule applies where there is a change of status in legal proceedings (e.g., death or incapacity of a party), but does not apply to changes in persona (identity).
- The Court in Tecmed (Pty) Limited and Others v Nissho Iwai Corporation (2009) ZASCA 143, clarified the application of Uniform Rule 15 and substitution of parties.
- Kader v Frank and Warshaw (1926) AD 344 examined the process for substituting parties after changes in status.
- In Friedman v Woolfson (1970) 3 SA 521 (D), the Court discussed substitution of parties in legal actions and the need for proper authority.
- Rule 5 of the Rules of the SCA requires that an attorney acting on behalf of a client must have proper authority to do so.
- In the case of Ganes and Another v Telecom Namibia Ltd (2004) 3 SA 615 (SCA), the Court established the principles regarding the authority of attorneys in legal proceedings.
- Section 16(2)(a)(i) of the Superior Courts Act 10 of 2013 allows a court to dismiss an appeal if it has no practical effect.
- MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd (2014) ZACC 6 addressed mootness and justiciability of cases, emphasising the need for live controversies.
APPLICATION
1. Could Adv Mkhwebane use Uniform Rule 15?
Adv Mkhwebane tried to use Rule 15 to substitute herself after being removed from office, arguing it was a change in her legal status. The SCA had to interpret Uniform Rule 15 to decide if it applied. The SCA found that this rule applies only to changes of status and not to a change of persona. To support its argument the Court relied on the case of Curtis-Setchwell & McKie v Koeppen 1948 (3) SA 1017 (W) (Curtis-Setchwell) and Tecmed (Pty) Limited v Nissho Iwai Corporation [2009] ZASCA 143 whereby the Court held that the purpose of Rule 15 is not meant to substitute a party. Thus, the Court found that Rule 15 does not apply to this case at all.
2. Was Rule 5 of the Rules of the SCA rules met?
Her attorneys had brought the appeal in the Public Protector’s name. However, they did not possess the valid authority to do so as required by Rule 5 of the SCA Rules. The Court referenced the case of Ganes and Another v Telecom Namibia Ltd (2004) 3 SA 615 (SCA), which established that only duly authorised representatives can initiate or continue legal actions.
3. Was the appeal moot?
The SCA ruled that the appeal was moot since Adv Mkhwebane’s removal was already final and her term as Public Protector would have ended in any case. The SCA highlighted that the issues raised, such as the recusal of committee members or procedural fairness, would not change the fact that she had already been replaced. The Court relied on section 16(2)(a)(i) of the Superior Courts Act 10 of 2013, which allows a court to dismiss an appeal if it would not result in any practical effect. In the case of MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd [2014] ZACC 6, the Court highlighted that courts should avoid ruling on moot or academic issues, emphasising the importance of live controversies.
CONCLUSION
The SCA ruled that Adv Mkhwebane’s lawyers had no authority to appeal in the Public Protector’s name. It also found that her attempt to substitute herself under Uniform Rule 15 was invalid. Moreover, the appeal would have no practical effect, because she had already been removed from office and a new Public Protector had been appointed. Consequently, the SCA struck the appeal from the roll and ordered Adv Mkhwebane to pay the costs of the appeal, including those of two advocates.