The office of public protector and its head, Kholeka Gcaleka, distanced themselves from litigation being conducted in the name of “the public protector” by Busisiwe Mkhwebane.
In court papers filed in the Supreme Court of Appeal (SCA) on Monday, a letter from the public protector’s office said neither Gcaleka nor the PPSA had authorised an appeal related to Mkhwebane’s fight over the recusal of two members of the committee who conducted her impeachment inquiry.
In April 2023, the Western Cape High Court rejected an application to review the refusals by chair of the committee, Qubudile Dyantyi, and DA MP Kevin Mileham to recuse themselves. The court granted leave to appeal and Mkhwebane, as “the public protector”, approached the SCA.
In December, months after Mkhwebane had been impeached as public protector, her counsel filed heads of argument in the appeal court. The heads of argument refer to the appellant as “the public protector of SA”.
But Gcaleka’s office said in the correspondence that Mkhwebane’s attorneys at the time of the impeachment inquiry “were expressly advised the PPSA was not in a position to authorise, commit funding to or mandate any litigation in respect of advocate Mkhwebane’s application for the recusal of the chairperson and one member of the section 194 committee”.
According to the high court judgment, the instructing attorneys for the litigation at that stage were Seanago Attorneys.
The letter, filed in court on Monday, confirmed the current attorneys, “RMT Attorneys” (Ramushu Mashile Twala Inc), had not been authorised to prosecute the current appeal.
As a result of the correspondence, Mileham and the DA have filed a notice in terms of the Uniform Rules of Court disputing the authority of Ramushu Mashile Twala “to act on behalf of the appellant”.
Mileham and the DA have asked RMT Attorneys to lodge a copy of their power of attorney to act, “duly signed by or on behalf of the public protector of SA”, with the registrar of the SCA.
Should this not be produced, it is unlikely the case could continue, unless Mkhwebane finds a way to pursue it in her personal capacity and despite that she is not a party to the litigation.
The High Court dismissed her application to review the recusal decisions on the basis that she had brought it “in media res”, or while the proceedings were ongoing, and her review application was therefore premature.
“It would not be appropriate for this court to permit a piecemeal review of proceedings. With no exceptional circumstances demonstrated, the balance of convenience favours a decision to dismiss the application brought by the applicant,” the High Court ruled in April 2023.
Mkhwebane has also filed an application in court challenging a decision by the public protector that it refused to pay her a gratuity after her removal from office. On Tuesday, the public protector’s office confirmed having received her court papers and said it would “attend to the matter” and would not comment further.
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