Former public protector Busisiwe Mkhwebane briefs media in Midrand ,Johannesburg, on 30 August 2023. Picture: Nigel Sibanda
Former Public Protector Busisiwe Mkhwebane has been dealt a blow after the Constitutional Court dismissed her latest impeachment-related appeal bid.
In a two-page order delivered by Chief Justice Mandisa Maya on Wednesday, the apex court said Mkhwebane’s leave to appeal application “must be dismissed on the basis that it is moot and that nothing warrants the court’s exercise of a discretion to entertain it despite its mootness”.
“Consequently, leave to appeal is refused,” the ConCourt stated.
In papers filed at the Constitutional Court, Mkhwebane urged the apex court to sanction Supreme Court of Appeal (SCA) Judge Visvanathan Ponnan for what she described as an unwarranted attack and abuse of her legal representative, Dali Mpofu.
Ponnan dismissed and criticised her “frivolous” appeal application.
Mpofu’s reputation took a massive knock, with Ponnan slamming the advocate for pursuing the matter on behalf of Mkhwebane, labelling the attempt “dead on arrival”.
ALSO READ: Mpofu suffers reputational damage after tongue lashing from SCA, say analysts
During the SCA proceedings, Mpofu argued Mkhwebane’s attempted appeal against a Western Cape High Court ruling that dismissed her attempts to force the removal of ANC MP Qubudile Dyantyi and DA MP Kevin Mileham from the section 194 committee that was appointed to investigate multiple allegations of misconduct and incompetence against her.
Mkhwebane said she was “deeply disappointed and disheartened” by the ruling.
“I appealed with the hope of seeking justice and clarity. However, it was evident that Judge Poonan, leading the judgement, displayed noticeable arrogance and dismissiveness throughout the proceedings.
“My ongoing struggle has consistently involved key figures, predominantly of Indian descent, who have positioned themselves as my persecutors.
“Judge Poonan’s attitude further underscores the challenges and biases I have faced in my quest for justice,” Mkhwebane said in October last year.
Mkhwebane later apologised for her racial remarks, claiming that judicial officers of Indian descent targeted her.
In the judgement delivered in October last year, Ponnan ruled that Mkhwebane’s appeal was not properly before the court and criticised the unmeritorious nature of her case.
Ponnan did not hold back when criticising Mpofu on his often abrasive and protracted arguments.
“Exasperated sighs, soapbox oratory, empty rhetoric, political posturing, theatrical gestures and long-winded dismissive non-sequiturs have no place in a courtroom, particularly in response to searching questions from the bench,” Ponnan said.
“To understand the decision-making process, those who practice in this court are expected to have more than just a nodding acquaintance with the relevant rules, as also the established jurisprudence of this court.
“Developed skills in legal research, analysis and writing are an indispensable part of an appellate practitioner’s toolkit.”
The judge also criticised Mpofu for not objectively assessing Mkhwebane’s reasons for wanting to appeal the ruling.
“Unless the matter is approached from a detached perspective, a legal representative may well develop tunnel vision.”
ALSO READ: Mkhwebane slams ‘Indian persecutors’ after SCA ruling
In November 2022, Mkhwebane approached the Western Cape High Court, seeking Dyantyi’s and Mileham’s recusal 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, who brought the motion the National Assembly adopted to proceed with the inquiry into whether Mkhwebane misconducted herself or displayed incompetence.
Dyantyi was the chairperson of that committee and routinely had to navigate Mpofu’s apparent efforts to delay the inquiry into Mkhwebane’s fitness for office.
Although the high court dismissed Mkhwebane’s application in April 2023, she was granted permission to appeal the ruling in the SCA.
Despite the ongoing legal battle, the National Assembly proceeded with Mkhwebane’s impeachment in September 2023, as there was no interdict or court order in place to stop the process.
ALSO READ: Advocates ‘don’t like to be seen to be criticising’ Mpofu publicly
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