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iv. Order the Respondent State to pay the Victim financial compensation in the amount of R50 ,000,000 (fifty million Rand) for damages suffered , including the costs of litigation at the national level , within three months; and v . Further orders as the Commission deems fit to grant in the circumstances. Procedure: 12. The Secretariat received the Complaint on 02 June 2022. The Complaint included a request for provisional measures for the Victim pending finalization of the Communication , requesting that the Respondent State be ordered to suspend the processes to remove the Victim from office in terms of Section 194 of the Constitution. 13. On 09 August 2022 , the Parties were informed of the Commission 's decision to be seized of the matter, in addition to its decision not to grant the request for provisional measures because the Complaint did not demonstrate the irreparability of the possible damage justifying the urgency of the provisional measure. The Complainant was requested to present evidence and arguments on the admissibility and merits of the Communication within two months of the notification, in accordance with Rule 116(1) of the Commission 's Rules of Procedure (2020). 14. On 04 October 2022, the Complainant transmitted submissions on admissibility and merits to the Commission which were transmitted to the Respondent State, and on 28 February 2023 the Respondent State's submissions on admissibility and merits were received by the Secretariat. On 12 March 2023, the Secretariat received the Complainants rejoinder on the Respondent State's submissions. 15. The Communication was declared admissible during the Commission's 79 th Ordinary Session, held from 14 May to 03 June 2024. ADMISSIBILITY The Complainant's Submissions on Admissibility: 16. With regards to Article 56(1) of the African Charter, the Complainant submits that the identity of the Victim and Complainant have both been indicated, therefore satisfies the first requirement for admissibility. 17. Regarding Article 56(2) of the African Charter, the Complainant submits that the violations in the present Communication are related to the human rights which fall within the ambit of the African Charter. The Complainant submits that the Communication is in conformity with the Constitutive Act of the African Union and the African Charter.

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Communication 799/2022 – Busisiwe Mkhwebane (represented by Shadrack Tebeile) v. Republic of South Africa

ACHPR Decision

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Type of Document

Decision

Keywords

Functioning and Independence of the Judiciary
Right to Fair Trial

Case Head Notes: The communication was brought on behalf of Busisiwe Mkhwebane, the former Public Protector of South Africa, challenging the constitutionality of the parliamentary process for removing holders of Chapter 9 constitutional offices. Specifically, the complainant argued that Rule 129V, which permitted the appointment of a judge to an Independent Panel tasked with assessing whether there was a prima facie case for removal from office, violated the principles of judicial independence and separation of powers. The complainant alleged that this infringed the rights guaranteed under Articles 7(1) and 26 of the African Charter, and consequently Article 1. Before approaching the African Commission, the matter had been litigated before the High Court and ultimately the Constitutional Court of South Africa, which upheld the constitutionality of the impugned rule. On the merits, the Commission held that the appointment of a retired judge to the Independent Panel did not undermine judicial independence or violate the doctrine of separation of powers. It found that South Africa's constitutional and legislative framework adequately safeguarded judicial independence and that the complainant had failed to provide evidence showing that the presence of a retired judge compromised the independence or impartiality of the judiciary. The Commission further held that it was not an appellate body over national courts and therefore could not review whether the Constitutional Court had "misdirected itself." It also found that the complainant had full access to domestic courts and had exercised her right to be heard. Consequently, the Commission found no violation of Articles 26, 7(1), or 1 of the African Charter.

Country

South Africa

Outcome: Decided on Merits

Year Decided: Mar 11, 2025

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 7.1: Right to be Heard
ACHPR 1: General Obligations
ACHPR 26 : Duty to Guarantee Independence of Courts

Rights Violated (ACHPR Provisions)

None Indicated

Rights Not Violated (ACHPR Provisions)

ACHPR 7.1: Right to be Heard
ACHPR 1: General Obligations
ACHPR 26 : Duty to Guarantee Independence of Courts

Duration of Procedure

Jun 2, 2022 ~ Mar 11, 2025

Country Geolocation

Latitude: -30.559482

Longitude: 22.937506

Country Geolocation (linked ACHPR Decision): South Africa

Primary Documents

Busisiwe Mkhwebane (represented by Shadrack Tebeile) v. Republic of South Africa.pdf
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ML TOC
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African Human Rights CLA 2.0

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Communication 799/2022 – Busisiwe Mkhwebane (represented by Shadrack Tebeile) v. Republic of South Africa

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