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0ocu,;g, Eowlope l~;E_~ ~ 9520-7A C HAP 5R African Commission on Human and Peoples' Rights Hum n Righ ts our Collective Respons1b1hw COMMUNICATION 799/2022 Busisiwe Mkhwebane Adoptfle par la Commission des Falt /ors de /. sslon up/es ent, du 25 Mvrler au 11 mars 2026. 4;~ l\lo ~ 0-o\ .. ........ . ........... . ~\ <fl \ C P. afri de/'h Com del'h 'ts ""Qga, ci tha African 1 Union ec/eh/15/AIO The African Commission on Human and Peoples' Rights 31 Bijilo Annex Layout, Kombe North District, West Coast Region Phone: (220) 230 4361 Fax: (220) 441 05 04 Emall : au-banjul@africanunion.org https:/achpr.au.lnt/0 O •

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

Decisão da CADHP sobre Comunicação

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Type of Document

Decisão

Palavras-Chave

Direito ao Julgamento Justo
Independência Judicial

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.

Estado

África do Sul

Resultado: Decidiu sobre os Méritos

Data da Decisão: 11 de mar. de 2025

Rights Alleged to be Violated

CADHP 26 : Dever de Garantir a Independência dos Tribunais
CADHP 7.1 : Direito de Ser Ouvido
CADHP1 - Obrigações dos Estados Partes

Direitos Violados

Não indicado

Rights Not Violated

CADHP 26 : Dever de Garantir a Independência dos Tribunais
CADHP 7.1 : Direito de Ser Ouvido
CADHP1 - Obrigações dos Estados Partes

Duration of Proceduretest

2 de jun. de 2022 ~ 11 de mar. de 2025

Country Geolocation

Latitude: -30.559482

Longitude: 22.937506

Country Geolocation (linked Decisão da CADHP sobre Comunicação): 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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