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(f~f.) ACHPR ,, ,' African "-lcroJcmV'* Cornrn1ss1on on Human and Peoples' Rights Human Rights our Collective Responsibility Communication 799/22: Busisiw e Mkhwebane (represented by Shadrack Tebeile) v. South Africa Summary of the Complaint 1. The Secretariat of the African Commission on Human and Peoples' Rights (the Secretariat) received a Complaint on 02 June 2022 from Adv . Shadrack Tebeile (the Complainant), on behalf of Busisiwe Mkhwebane (the Victim) , against the Republic of South Africa (the Respondent State), a State Party to the African Charter on Human and Peoples' Rights (the African Charter),1 2. The Complainant submits that the Victim was promoted to the position of Public Protector of the Respondent State in October 2016 . On 13 September 2017 , the Chief Whip of the Democratic Alliance , a political party in the National Assembly , made a first request under the National Assembly's Rule 337(b ), to initiate proceedings to remove the Victim from her position as provided in Section 194 of the Constitution. However, with a vote of 6-4, the Portfolio Committee voted against the party's request to remove the Victim from office. The basis for the removal of the Victim from office was the adverse remarks made against the Victim in the judgment of South African Reserve Bank v. Th e Public Protector I. 3. The Complainant submits that, on 16 February 2018 , the Democratic Alliance made a second request for the Victim's removal ; however, the Portfolio Committee resolved by majority vote that the second request was premature due to the fact that there was ongoing litigation with the same subject matter. 4. The Complainant submits that on 23 May 2019, the Democratic Alliance filed a third application for dismissal of the Victim , but in its report of 27 August 2019 , the Portfolio Committee ind icated that there were no provisions to ensure a fair process 1 South A fri ca ratifi ed the A fri can Charter on 09 Ju ly 1996 1

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

Décision de la CADHP

Aperçu

Type de Document

Décision

Mots clés

Droit à un procès équitable
Fonctionnement et indépendance du pouvoir judiciaire

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.

Pays

Afrique du Sud

Résultats: Décidé sur le fond

Année de la Décision: 11 mars 2025

Violations alléguées (dispositions de la CADHP)

CADHP 7.1 : Droit d'être entendu
CADHP 1: Obligations générales
CADHP 26 : Devoir de garantir l'indépendance des tribunaux

Droits violés (dispositions de la CADHP)

Aucun indiqué

Droits non violés (dispositions de la CADHP)

CADHP 7.1 : Droit d'être entendu
CADHP 1: Obligations générales
CADHP 26 : Devoir de garantir l'indépendance des tribunaux

Durée de la procédure

2 juin 2022 ~ 11 mars 2025

Géolocalisation du Pays

Latitude: -30.559482

Longitude: 22.937506

Géolocalisation du Pays (Lié Décision de la CADHP): South Africa

Documents principaux

Busisiwe Mkhwebane (represented by Shadrack Tebeile) v. Republic of South Africa.pdf
English
TOC ML
Télécharger Vue

African Human Rights CLA 2.0

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

Documents principaux

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