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25. The Complainant further submits that there was never any settlement of issues by the parties in accordance with the principles of the Charter of the United Nations, the Constitutive Act of the African Union, the provisions of the African Charter or any legal instrument of the African Union. Accordingly , it is submitted that the requirement for admissibility under Article 56(7) of the African Charter has been met. 26 . Accordingly, the Complainant submits that the Victim has satisfied the requirement for admissibility. The Respondent State's Submission on Admissibility: 27 . The Respondent State submits that the Communication should be dismissed because it does not meet the requirements for admissibility. The State further submits that the Complainant's true cause of action is a complaint about the judgement of the Constitutional Court. 28 . In this regard, the Respondent State avers that a core requirement for seizure and admissibility of a Communication is that the Victim must demonstrate a prima facie case of a breach of the African Charter. The Respondent State further avers that the allegations of a Communication should provide prima facie evidence that a provision of the African Charter has been violated . 29 . The Respondent State submits that the Commission like other international bodies requires that the Complainant submit a prima facie case in order to be admissible. The State further submits that Commission has explained that "[A] communication which does not include a prima facie violation of the Banjul Charter or some of the basic principles of the OAU Charter such as 'freedom , equality, justice or dignity' will not be examined ," referring to the ACHPR Information Sheet No.3, p.8.4 30. The Respondent State contends that "the Complainant relies in this regard on alleged breaches of Articles 1, 7(1) and 26 of the Charter;" 5 however, submits that taking all the factual allegations at face value , they do not demonstrate an alleged breach of any of the Articles on which the Complainant relies .6 The Complainant's rejoinder on Admissibility: 31 . The Complainant submits that the Respondent State is incorrect in stating that the Communication 's true cause of action is a complaint about the judgment of the Constitutional Court. The Complainant submits that the true cause of action is violation of Article 7(1) and 26 of the African Charter, in that the Respondent State's Rule 129V of the National Assembly permitted the appointment of a Judge as part of the Independent Panel .7

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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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