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19. The Complainant submits that the claims for violations and the allegations therein are not based exclusively on news disseminated through the mass media, instead are based on the decisions by the authorities, institutions and courts of the Respondent State, and the court proceedings which took place within the domestic courts of the Respondent State. Accordingly , it is submitted that this requirement for admissibility is satisfied . 20 . Regard ing Article 56(5) of the African Charter, the Complainant submits that the matter has been through the local courts in the Respondent State, and further the fact that the matter went up to the Respondent State's Constitutional Court, means that the matter has been adjudicated up to the highest Court of the Respondent State. Accordingly , the Complainant submits that local remedies have been exhausted within the Respondent State. 21 . The Complainant further submits that in 2021 , the Victim brought an application in the High Court of South Africa for urgent relief, seeking an order relating to the Rules on the removal of the heads of Chapter 9 institutions, including the Public Protector wh ich is the office occupied by the Victim since October 2016 . The High Court declared the Rules unconstitutional. The High Court severed Rule 129V, which provides for appointment of a Judge into the Independent Panel which is tasked to determine whether there are grounds for removal of the officer-bearer under Chapter 9, removing reference to "appointment of a Judge as part of the Independent Panel." 22 . The Complainant further submits that the Speaker of the National Assembly brought an application in the Constitutional Court, seeking an order for direct leave to appeal the High Court's decision , which was granted . The Complainant avers that the Constitutional Court confirmed the constitutional invalidity relating to legal representation . However, the Constitutional Court decided that "the application relating to the constitutionality of Rule 129V is dismissed ." 23. The Complainant further submits that the Victim sought an order from the Constitutional Court to cross-appeal against the judgment of the High Court. Accordingly , the Complainant submits that because the Victim 'approached the Constitutional Court to cross-appeal '3 in the highest Court in the Respondent State, the Victim has exhausted local remedies and therefore satisfies the requirement for admissibil ity. 24. 3 With regards to Article 56(6) of the African Charter, the Complainant submits that the apex court of the State, namely the Constitutional Court, handed down its judgment on 04 February 2022 , while the Communication was received by the Commission on or about 02 June 2022 , which is within less than five months from the date of the judgment of the highest Court. Accordingly , the Complainant submits that the Complaint was filed within a reasonable time from the date of exhausting local remedies. Paragraph 35, Comp lainant's Heads of Argument on Admissib ili ty and Me1its 4

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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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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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