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independence of the Judiciary, because Judges are "used on processes which are designed for politicians. " 64. The Complainant avers that the High Court correctly found that it is undesirable for a Judge to be part of the Independent Panel , finding that "as of late, the judiciary has come under attack for being partisan to political parties or factions. Judicial involvement in this process feeds into this narrative. " The Complainant contends that the High Court held that "the judiciary would be well advised to steer clear of a process so politically charged , in which its involvement adds no value other than expediency." The Complainant avers that the Constitutional Court confirmed that the involvement of a Judge in the Independent Panel adds no value when it stated that "the Judge is appointed to the Independent Panel not to make a binding decision." 65 . Therefore, the Complainant submits that the composition of an Independent Panel which includes a Judge constitutes a failure by the Respondent State to uphold a duty to guarantee the independence of the Courts, for the following reasons: • By virtue of the fact that the Independent Panel constitutes a Judge, and two other "non-judge" members , this is clear evidence that the functions to be carried out by the Independent Panel are not judicial functions, and are also not connected with judicial functions; therefore there is no compelling reason why a non-judicial function which is not closely connected with the core function of the judiciary should be performed by the member of the judiciary. • The High Court correctly held that it was not desirable to have a Judge on the Independent Panel. • It is undesirable for a Judge to sit with two other non-judge members of the Independent Panel , in a politically charged process , because the process is exclusively designated to the National Assembly for the removal of office bearers from office. To permit Judges to sit in this kind of panel not only weakens judicial independence because judges will be tasked to sit in politically charged processes, but that will also weaken the public's confidence in the judiciary. 66. The Complainant submits that, to ensure the independence of the Judiciary, judges, both retired and in active service , should only be appointed in processes that are not politically oriented , such as the National Assembly's removal of office bearers in terms of Section 194 of the Constitution. Violation of Article 1 of the African Charter 67 . The Complainant submits that, in light of the fact that the Respond violated the Victim 's rights under Articles 7(1) and 26 of the A therefore the State has also violated Article 1 of the Charter. Submissions of the Respondent State on the merits: Violation of Article 1 of the African Charter ' ! '' ,l \ • •J' ·,✓. 1 ~ICAJN~O ''-tE 12 ' ,.:.: Eroes?€_...,--, ,

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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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