Public protector’s office distances itself from Mkhwebane’s appeal to SCA
The office of the public protector and its head, Kholeka Gcaleka, have distanced themselves from litigation being conducted in the name of “the public protector” by Busisiwe Mkhwebane.
In court papers filed in the Supreme Court of Appeal (SCA) on Monday, a letter from the public protector’s office said neither Gcaleka nor the office of the public protector (PPSA) had authorised an appeal related to Mkhwebane’s fight over the recusal of two members of the committee that conducted her impeachment inquiry.
In April last year, the Western Cape High Court rejected an application to review the refusals by committee chair Qubudile Dyantyi and DA MP Kevin Mileham to recuse themselves.
The court granted leave to appeal against the ruling and Mkhwebane, as “the public protector”, approached the SCA.
In December, months after Mkhwebane had been impeached as public protector, her counsel filed heads of argument in the appeal court.
The heads of argument refer to the appellant as “the public protector of South Africa”.
But Gcaleka’s office said in the correspondence that Mkhwebane’s attorneys at the time of the impeachment inquiry “were expressly advised the PPSA was not in a position to authorise, commit funding to or mandate any litigation in respect of advocate Mkhwebane’s application for the recusal of the chairperson and one member of the Section 194 committee”.
According to the high court judgment, the instructing attorneys for the litigation at that stage were Seanago Attorneys.
The letter, filed in court on Monday, confirmed the current attorneys, RMT Attorneys (Ramushu Mashile Twala Inc), had not been authorised to prosecute the current appeal.
As a result of the correspondence, Mileham and the DA have filed a notice in terms of the Uniform Rules of Court disputing the authority of Ramushu Mashile Twala “to act on behalf of the appellant”.
They have requested RMT Attorneys to lodge with the registrar of the SCA a copy of their power of attorney to act, “duly signed by or on behalf of the public protector of South Africa”.
Should this not be produced, it is unlikely the case could continue, unless Mkhwebane finds a way to pursue it in her personal capacity even though she is not a party to the litigation.
Mkhwebane has also filed an application challenging the office of the public protector’s refusal to pay her a gratuity after her removal.