Mkhwebane takes impeachment fight to SCA, argues her rights were violated

Advocate Dali Mpofu has argued that impeached public protector advocate Busisiwe Mkhwebane’s rights were violated when the Western Cape High Court did not allow her to address critical issues in her case against certain individuals on the Section 194 committee.

On Wednesday, Mkhwebane appeared before the Supreme Court of Appeal (SCA) in a bid to challenge the Western Cape High Court’s judgment, which dismissed her application, with costs, to have the chairperson of parliament’s Section 194 Committee, Qubudile Dyantyi, and Democratic Alliance (DA) Member of Parliament (MP) Kevin Mileham recused from the hearing.

Mkhwebane sought Dyantyi’s removal over bribery allegations levelled against him by Mkhwebane’s husband, David Skosana.

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She also argued that Mileham was conflicted because his wife, DA MP Natasha Mazzone, had brought the motion to establish the inquiry into her fitness to hold office.

In August 2023, the majority of members of the Section 194 Committee agreed to recommend to parliament that she be removed from her office.

She was removed a month later after a majority of MPs in the National Assembly voted in support of her impeachment.

‘Violation of Mkhwebane’s rights’

On Wednesday, Mkhwebane, through her legal representation Mpofu, argued that the court did not grant her the opportunity to address her concerns regarding certain individuals on the Section 194 committee.

He further argued that the continuation of the committee proceedings, allowed by Dyantyi, without her legal representation was unlawful.

Mpofu referred to a session in which a “presentation” of the history of the CR17 Constitutional Court ruling by evidence leaders proceeded without Mkhwebane’s lawyers.

ALSO READ: Mkhwebane not being denied right to lawyers, Section 194 Committee told

At the time, evidence leader Advocate Nazreen Bawa said that her presentation was not aimed at making a case against Mkhwebane but rather “to present evidence to the committee.”

This, Mpofu argued, was a violation of Mkhwebane’s rights.

‘Multiple violations’

He said: “Mkhwebane is saying: ‘I have suffered multiple violations of my constitutional rights at the hands of these respondents. They, as a result of that, I had to go through an illegal process which violated everything under the sun, especially the denial of legal representation’.

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“Even if she was not found guilty by the Section 194 committee, she still has the right to come here and say having those individuals who sat in the committee amounted to the violation of her rights.

“We are asking his court to say the obvious, that this court misdirected itself in dealing with one cause of action and completely ignoring the other cause of action.

“If you could just do a declaration, which you must do, saying the conduct of the committee was inconsistent with the constitution.

“If this court is not prepared to find that the closing out of lawyers is a violation of the constitution, then it will find nothing to be a violation of the constitution. If that is not sufficient, then nothing ever will be.

“If this court is not prepared to find that is it a gross violation of human rights for somebody to be tried by a panel in which one of the decision makers is married to the complainant, it will never find anything as a violation of the constitution.

ALSO READ: ‘Right hand doesn’t know what left hand is doing’ – Mkhwebane says inquiry ‘riddled with illegalities’

“You can’t say your advocate is not here but we will proceed anyway,” Mpofu said.

‘Practical effect’

Regarding whether a finding in her favour by the SCA would have any practical effect since she has long left the office she was impeached from, Mpofu told the court that a declaration that Mkhwebane’s constitutional rights were violated was sufficient.

“If a citizen of this country, at the hands of a public institution, has their rights limited, infringed and violated, that on its own has practical effect. The practical effect is that the vindication of the constitution itself is actionable.”

Meanwhile, Mkhwebane awaits the judgment of the North Gauteng High Court in Pretoria, where she is challenging her former employer’s refusal to pay out her R10 million gratuity.

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