The Supreme Court of Appeal has struck from the roll a “dead on arrival” appeal by former public protector Busisiwe Mkhwebane and rebuked her counsel, Dali Mpofu SC, for how the appeal was litigated.
“Exasperated sighs, soapbox oratory, empty rhetoric, political posturing, theatrical gestures and long-winded dismissive non-sequiturs have no place in a courtroom,” said justice Visvanathan Ponnan on behalf of a unanimous bench on Tuesday.
Mkhwebane had tried to appeal a judgment of the high court, which rejected a case that sought to challenge the refusal by MPs Qubudile Dyantyi and Kevin Mileham to recuse themselves from the committee that was conducting an investigation into whether she should be impeached. She had also wanted to set aside the decisions by the committee not to call “relevant witnesses” to testify.
However, by the time the appeal was heard by the SCA, the committee’s work was long done, and she had already been impeached.
The litigation was conducted in the name of the Public Protector of South Africa, but the office of the public protector said the appeal had not been authorised by it. The DA, therefore, challenged the authority of her lawyers to press ahead. Mkhwebane then sought to substitute her own name for that of the Public Protector of South Africa. To do so, she used Rule 15 of the Uniform Rules of Court.
But this route was not open to her, said the judgment. The appeal was also moot — it had long been overtaken by events and the determination of the court would have no practical effect.
Exasperated sighs, soapbox oratory, empty rhetoric, political posturing, theatrical gestures and long-winded dismissive non-sequiturs have no place in a courtroom.
— Visvanathan Ponnan, justice
In his judgment, Ponnan said: “Had counsel stepped back apace or had Ms Mkhwebane taken advice from a disinterested member of the bar, schooled in appellate practice, she would have been advised not to pursue this appeal, which self-evidently wad dead on arrival.”
The judges could not “conceive that any reasonable legal practitioner could disagree with this appraisal”, said Ponnan. The other justices on the bench were Caroline Nicholls, Billy Mothle and acting justices Mokgere Masipa and Evette Dippenaar.
Ponnan said when counsel had been involved in many matters involving the same client, “they can easily become convinced of the merits of their client’s cause, oftentimes to the detriment of the client”. The court also ordered that the costs of the appeal be paid by Mkhwebane.
Mkhwebane’s lawyers had been asked by the court, ahead of the hearing, specifically to address the question of Rule 15’s applicability.
“However, despite having been forewarned, counsel for Ms Mkhwebane, who seemed not to be sufficiently well-versed with the relevant authorities, was of little to no assistance to the court,” said Ponnan.
He added that “those who practise in this court” were expected to have “more than just a nodding acquaintance with the relevant rules as also the established jurisprudence of this court”.
Ponnan said Mkhwebane could have made a “substantive” application for substitution, but the Rule 15 route was only available when a litigant’s status had changed. Here, what was sought to be changed was the “persona”.
Also, Rule 15 cannot be used after the commencement of a hearing. Here, the matter had already been heard in the high court, said Ponnan. “I believe that it now has to be accepted that Uniform Rule 15 has no application in this court,” he said.
This would create certainty for litigants and did not leave Mkhwebane without a remedy because she could have applied for a substitution, he said.
On why the appeal was moot, Ponnan said had Mkhwebane stayed in office for a full term, that term had now expired. “Restoration to office is thus constitutionally and factually impossible. In the circumstances, no public benefit can come from a judicial pronouncement on the regularity of the [impeachment] committee’s rulings,” he said.
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