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

The appeal arose from an urgent application launched in the Western Cape High Court by Ms Busisiwe Mkhwebane in November 2022, purportedly in her capacity as the Public Protector of South Africa. At that stage, impeachment proceedings under section 194(1) of the Constitution were ongoing before a parliamentary committee. Ms Mkhwebane sought the recusal of the Chairperson and a committee member, as well as related procedural relief. The High Court dismissed the application on the basis that it constituted an impermissible in medias res review. Leave to appeal was granted. Subsequently, the parliamentary process was finalised: the committee recommended removal, the National Assembly adopted the resolution, and the President removed Ms Mkhwebane from office in September 2023. Despite this, the appeal continued in the name of the Public Protector. The incumbent Public Protector confirmed that the appeal was not authorised. After a challenge to the attorneys’ authority under SCA rule 5, Ms Mkhwebane attempted to substitute herself as appellant by way of a notice under Uniform rule 15, without bringing a substantive application.

The appeal was struck from the roll with costs, including the costs of two counsel, to be paid personally by Ms Busisiwe Mkhwebane.

The judgment clarifies South African procedural law by definitively holding that Uniform rule 15 does not apply after judgment or in the Supreme Court of Appeal, and that it is confined to changes of status rather than changes of persona. It reinforces the strict requirements for attorney authority under SCA rule 5 and underscores that appeals cannot be prosecuted without proper mandate and locus standi. The case is also significant in the broader constitutional context of litigation arising from the removal of a Chapter 9 office-bearer.