The Public Protector of South Africa v The Chairperson of the Section 194(1) Committee and Others

Ms Busisiwe Mkhwebane was appointed Public Protector in 2016. In February 2020, a motion was submitted to the National Assembly for an enquiry under section 194(1) of the Constitution into her removal from office on grounds of misconduct and incompetence. An independent panel recommended the enquiry proceed, and a Committee was established. On 7 November 2022, during the ongoing enquiry, Ms Mkhwebane (in her capacity as Public Protector) launched an urgent application in the Western Cape High Court seeking to declare certain decisions of the Committee unlawful, including decisions to dismiss her recusal applications against the Chairperson and a member, to dismiss an adjournment application, and to refuse to summon certain witnesses. The application failed on 13 May 2023, with the high court dismissing it on the basis that it was brought in medias res (in the middle of proceedings). Leave to appeal was granted on 1 June 2023. Subsequently, the Committee completed its work and recommended Ms Mkhwebane's removal. The National Assembly adopted this resolution on 11 September 2023, and the President removed her from office on 13 September 2023. A new Public Protector, Ms Kholeka Gcaleka, was appointed effective 1 November 2023. When the appeal came before the Supreme Court of Appeal, questions arose about: (a) whether the attorney acting had proper authority, since the appeal was brought in the name of 'The Public Protector of South Africa' but Ms Mkhwebane had already been removed from office; and (b) whether Ms Mkhwebane could be substituted as appellant by notice under Uniform Rule 15.

• Whether an attorney's authority to act on behalf of a party can be challenged under Supreme Court of Appeal Rule 5
• Whether Uniform Rule 15 applies to substitution of a party after judgment in the high court and/or in the Supreme Court of Appeal
• Whether Uniform Rule 15 applies to a change of persona (different person) or only to a change of status (same person in different capacity)
• Whether an appeal can proceed when there is no properly authorized appellant before the court
• Whether the appeal has become moot and has no practical effect within the meaning of section 16(2)(a)(i) of the Superior Courts Act 10 of 2013
• Whether it is in the interests of justice to decide an academic appeal

The appeal was struck from the roll with costs, including those of two counsel, to be paid personally by Ms Busisiwe Mkhwebane (not by the Office of the Public Protector).

The binding legal principles established are: (1) Uniform Rule 15 applies only to a change of status (same person in a different capacity), not to a change of persona (substitution of a completely different person as a party to litigation). (2) Uniform Rule 15 does not apply in the high court after judgment has been granted (per the proviso to subrule 15(2) which prohibits notice of substitution after commencement of hearing of opposed matter). (3) Uniform Rule 15 does not apply in the Supreme Court of Appeal at all. Where substitution of a party is required in the SCA, whether due to change of status or change of persona, a substantive application is required. (4) Where an attorney's authority to act is challenged under SCA Rule 5, the attorney must produce a valid power of attorney or cease acting. A notice under Uniform Rule 15 does not cure the absence of proper authority. (5) An appeal cannot proceed where there is no properly authorized appellant before the court. (6) Under section 16(2)(a)(i) of the Superior Courts Act, an appeal may be dismissed where the decision sought will have no practical effect or result. This will ordinarily be the case where: (a) the appeal concerns interlocutory rulings in a process that has concluded; (b) the decisions consequent upon that process (including removal from office and appointment of a successor) have not been challenged and remain valid; and (c) restoration to the previous position is legally and factually impossible. (7) Even where an appeal is moot, a court may exercise discretion to decide it if it raises a discrete legal issue of public importance. However, fact-specific issues (such as whether particular rulings in a specific enquiry were correct) do not constitute discrete legal issues warranting departure from the mootness principle.

The Court made several significant observations: (1) On legal practitioners' duties: Legal practitioners are not merely 'hired guns' but officers of the court with fundamental obligations to uphold the integrity of the judicial process. They owe duties of honesty, candor, competence, and must not mislead the court. They must assist the court in doing justice according to law, not merely push their client's interests. When lawyers fail to keep their duty to the court at the forefront, they do a disservice to their client, the profession, and the public. (2) On standards of appellate practice: Appellate work requires rigorous original research and analysis, not merely recycling trial-level arguments. Appellate briefs receive greater scrutiny, and practitioners must be well-versed in the relevant rules and established jurisprudence. Developed skills in legal research, analysis, and writing are indispensable. Conclusory assertions cannot carry the day. Where counsel has been involved in many matters for the same client, they risk losing objectivity and developing tunnel vision. A detached perspective and objective analysis are essential. (3) On advocacy: Brevity is the hallmark of good advocacy. Clarity of thought, logical coherence, and conciseness are the product of painful preparation. Exasperated sighs, soapbox oratory, empty rhetoric, political posturing, theatrical gestures, and long-winded dismissive non-sequiturs have no place in a courtroom. Taking 'miserable, pettifogging points' is bound to fail. (4) On frivolous appeals: Unmeritorious appeals impact not just the immediate parties and the court, but other litigants whose deserving matters must wait in line while frivolous appeals are processed. Courts facing congested rolls cannot afford to have their time wasted. (5) On mootness: Courts exist for settlement of concrete controversies and actual infringements of rights, not to pronounce upon abstract questions or give advisory opinions. The doctrine of 'ripeness' serves the useful purpose of highlighting that courts generally deal with situations that have already crystallized, not prospective or hypothetical ones. The Court's time is too valuable to be frittered away on hypothetical fears. (6) The Court suggested that had Ms Mkhwebane taken advice from a disinterested member of the bar schooled in appellate practice, she would have been advised not to pursue the appeal, which was 'self-evidently dead on arrival.' No reasonable legal practitioner could disagree with this appraisal. (7) The Court noted with evident disapproval that despite being forewarned about the jurisdictional issues, counsel for Ms Mkhwebane failed to address them in written submissions and was of 'little to no assistance to the Court' at the hearing, not being 'sufficiently well-versed with the relevant authorities.'

This judgment clarifies important procedural principles in South African appellate practice: (1) It definitively establishes that Uniform Rule 15 does not apply in the Supreme Court of Appeal, and does not apply in the high court after judgment has been granted. This creates certainty for litigants about the proper procedure for substitution of parties. (2) It distinguishes between 'change of status' (same person in different capacity, to which Rule 15 applies) and 'change of persona' (different person entirely, requiring substantive application), an important distinction that had not been consistently applied in previous cases. (3) It emphasizes the importance of SCA Rule 5 as a mechanism for challenging an attorney's authority to act, and clarifies that a Rule 15 notice cannot cure a lack of authority. (4) It provides guidance on mootness in constitutional and administrative law appeals, reaffirming that courts will not decide academic questions unless there is a discrete legal issue of public importance and some practical effect on parties or others. (5) It reinforces the principle from Oudekraal that official conduct that has not been challenged remains valid and cannot be collaterally attacked. (6) It emphasizes the professional duties of legal practitioners as officers of the court, including the duties of competence, candor, and not pursuing frivolous appeals. The judgment serves as a strong reminder of the standards expected of appellate practitioners and the consequences of failing to meet those standards.