The Constitutional Court has dismissed an appeal application by former public protector Busisiwe Mkhwebane about a case that the Supreme Court of Appeal (SCA) called “dead on arrival”.
In a short order on Wednesday, the apex court said the appeal application was “moot” and nothing warranted the court entertaining the appeal.
The SCA had also found the appeal was moot and struck it from the roll. In a scathing judgment, justice Visvanathan Ponnan strongly criticised Mkhwebane and her counsel, Dali Mpofu, for trying to appeal.
“Had counsel stepped back apace or had Ms Mkhwebane taken advice from a disinterested member of the bar schooled in appellate practice, she would have been advised not to pursue this appeal, which self-evidently was dead on arrival,” he said.
The Constitutional Court said previously that a case is moot “if it no longer presents an existing or live controversy”.
The inquiry is over, the National Assembly has impeached her, she has been removed from office and a new public protector has been appointed, said Ponnan.
Mkhwebane was impeached as public protector in September 2023 but had, during her protracted impeachment inquiry in parliament, sought to challenge the refusal by MPs Qubudile Dyantyi and Kevin Mileham to recuse themselves from the committee that was conducting the inquiry. She had also wanted to set aside the decisions by the committee not to call “relevant witnesses” to testify. She failed in the high court.
However, by the time the appeal was heard by the SCA, the committee’s work was long done, and she had already been impeached. Ponnan said the appeal had been overtaken by events and a determination by the court would have no practical effect.
“The inquiry is over, the National Assembly has impeached her, she has been removed from office and a new public protector has been appointed.”
Mkhwebane’s term “would in any event have ended in mid-October 2023 had she not been removed. Restoration to office is thus constitutionally and factually impossible. In the circumstances, no public benefit can come from a judicial pronouncement on the regularity of the section 194 committee’s rulings,” said Ponnan.
In her application for leave to appeal, Mkhwebane had reportedly asked the Constitutional Court to chastise Ponnan for what she called a “scurrilous” personal attack on Mpofu.
She was referring to Ponnan’s blistering remarks about the way Mpofu conducted the litigation, including that “exasperated sighs, soapbox oratory, empty rhetoric, political posturing, theatrical gestures and long-winded dismissive non sequiturs have no place in a courtroom”.
According to a Mail & Guardian report, Mkhwebane said it was “high time that this honourable court pronounces on such judges who launch unwarranted personal attacks on counsel who appear before them in the exercise of their clients’ rights”.
“Leave to appeal is refused,” said the Constitutional Court. As the last stop for appeals, Wednesday’s order should be the end of the road in this litigation.
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