Previous 3 / 23 Next

for the dismissal of the heads of Chapter 9 institutions,2 including the Public Protector, and therefore referred the matter for determination to the Rules Committee of the National Assembly . 5. The Complainant submits that on 28 November 2019, the draft rules of removal of heads of Chapter 9 institutions were tabled in the National Assembly and adopted on 03 December 2019 . Thereafter, the Democratic Alliance filed a petition for the removal of the Victim under the new Rules. 6. The Complainant submits that in 2021 the Victim filed a case in the High Court challenging the constitutionality of the new Rules. The Complainant further submits that the Victim partially succeeded on her challenge against the impugned Rules; however, the Speaker of the National Assembly challenged the High Court's decision in the Constitutional Court, particularly an order declaring the new Rules unconstitutional and invalid. 7. The Complainant further submits that the Victim sought an order to cross-appeal against the judgment of the High Court in the Constitutional Court. 8. The Complainant submits that the Constitutional Court upheld that the Rule relating to deprivation of legal representation as unconstitutional and invalid; however, set aside the High Court's judgment declaring Rule 129V, which provides for appointment of a Judge in the Independent Panel tasked to determine whether there are grounds for the removal of the office-bearer under Chapter 9, as unconstitutional and finding that the appointment of a Judge to the Independent Panel is permissible . 9. Not satisfied with the decision of the Constitutional Court, the Complainant avers that the Victim submitted the Complaint for consideration by the Commission. Articles alleged to have been violated: 10. The Complainant submits that the Respondent State has violated Articles 1, 7(1) and 26 of the African Charter. Prayers: 11 . The Complainant requests the African Commission on Human and Peoples' Rights (the Commission) to : Declare that the Respondent State has violated the Victim's rights under Articles 1, 7(1) and 26 of the African Charter; ii. That Rule 129V relating to appointment of a Judge as part of the Independent Panel is inconsistent with Article 26 of the African Charter; iii. That Rule 129V relating to appointment of a Judge as part of the Independent Panel is declared unconstitutional and invalid ; 1.

Select target paragraph3

● ● ●

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

ACHPR Decision

Preview

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
English
ML TOC
Download View

African Human Rights CLA 2.0

Select target paragraph3

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

Primary Documents

Notifications