Former public protector Busisiwe Mkhwebane (left) has asked the court for leave to challenge the dismissal of a moot appeal and to rebuke judges for criticism of Dali Mpofu (right).(Photo by Luba Lesolle/Gallo Images via Getty Images)
In papers filed to the constitutional court, impeached former public protector Busisiwe Mkhwebane has reprised her attack on appellate court justice Visvanathan Ponnan, who she last month cast as part of an Indian conspiracy to deny her her constitutional rights.
She accused Ponnan of defaming her counsel, advocate Dali Mpofu, in an October ruling dismissing her appeal to the high court’s dismissal of one of her many legal challenges to the process that led to her removal from office in September.
And she plainly invited the apex court to chastise Ponnan for what she called a “scurrilous” personal attack on Mpofu.
“It is high time that this honourable court pronounces on such judges who launch unwarranted personal attacks on counsel who appear before them in the exercise of their clients’ rights,” Mkhwebane said in her papers, after setting out her legal grounds for seeking leave to appeal.
Mkhwebane is seeking to challenge a Western Cape high court ruling in May 2023 dismissing her interlocutory application to force the removal of the chairman of parliament’s section 194 impeachment inquiry, Qubudile Dyantyi, and one of its members, the Democratic Alliance’s Kevin Mileham.
The high court said it would not be appropriate to permit a piecemeal review of those proceedings.
A full bench of the supreme court of appeal (SCA) dismissed her appeal in October in a ruling penned by Ponnan that commenced by calling the matter “curiouser and curiouser”.
The court found that the appeal was not properly before the court as it was brought in the name of the public protector when Mkhwebane no longer held that position.
Mkhwebane then took to X to launch an attack on the court, which started by saying she was “deeply disappointed and disheartened”.
She went on to accuse Ponnan of arrogance and bias before saying that her “ongoing struggle has consistently involved key figures, predominantly of Indian descent, who have positioned themselves as my persecutors”.
Mkhwebane listed, among others, late minister Pravin Gordhan, who successfully challenged her adverse findings in the so-called revenue service rogue intelligence report; parliament’s chief legal advisor Zuraya Adhikarie, the evidence leader in the section 194 inquiry; advocate Nazreen Bawa SC, as well as former South African Revenue Service commissioner Ivan Pillay.
Her outburst was condemned by the judiciary and by parliament, with the latter saying “racial slurs” had no place in a democratic society and reminding Mkhwebane that, as an MP at that point, she had a duty to uphold constitutional values.
Mkhwebane later offered a partial apology to parliament’s legal advisors — who she said were “hard-working” — but none to SCA judges who struck her application off the roll.
Had she not resigned as an MP for the Economic Freedom Fighters in mid-October, the former public protector would have faced a complaint to parliament’s committee on ethics and members’ interests from Freedom Under Law for scandalising the court.
Mkhwebane defected to the uMkhonto weSizwe (MK) party — as Mpofu did last week.
In her application to the apex court, Mkhwebane made no racial inferences with regard to Ponnan but accused him of deviating from the matter at hand to bully Mpofu.
This despite the fact that the SCA judgement, handed down on 1 October, was a unanimous ruling with justices Mokgere Masipa, Caroline Nicholls, Evette Dippenaar and Selewe Mothle concurring.
The court held that the appeal was moot, meritless and frivolous.
It had been brought in the middle of an inquiry that had long since finalised and was followed by three decisions regarding her fitness to hold office, “none of which have been challenged”.
The committee’s recommendation that she be removed, the National Assembly’s vote to endorse that recommendation and President Cyril Ramaphosa’s decision to remove her all stood.
“Absent a challenge to those decisions, no order of this court could disturb their validity.”
Ponnan noted the argument by Mpofu that the court was obliged, in terms of section 172(1)(a) of the Constitution, to invalidate the conduct Mkhwebane claimed violated her rights and that technicalities should not be allowed to stand in the way of his client vindicating those rights.
Yet this provision was never raised in Mkhwebane’s notice of motion, meaning she could not rely on it in pleadings.
Ponnan then said it was necessary to comment on the manner in which the case was argued. He said it was notable that the applicant’s heads of argument did not address “or even allude” to any of the points that the court found were dispositive of the matter, including mootness and standing.
Despite being forewarned that he would be required to address the court on particular points, her counsel “seemed not to be sufficiently well-versed with the relevant authorities” to be of assistance to the court.
“Those who practise in this court are expected to have more than just a nodding acquaintance with the relevant rules, as also the established jurisprudence of this court,” Ponnan wrote.
“Developed skills in legal research, analysis and writing are an indispensable part of an appellate practitioner’s toolkit. Conclusionally, assertions that a lower court disregarded the law or turned a blind eye to egregious violations of a litigant’s rights, can hardly carry the day.“
The court said Mkhwebane should have been advised by her counsel that she had no case.
“Where, as here, counsel has 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,” Ponnan wrote.
“Unless the matter is approached from a detached perspective, a legal representative may well develop tunnel vision, thereby losing all objectivity.
“Had counsel stepped back a pace or had Ms Mkwebane 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 was dead on arrival.
“We cannot conceive that any reasonable legal practitioner could disagree with this appraisal.”
Mpofu, who is MK party leader Jacob Zuma’s defence counsel in his arms deal corruption case, has been called to order by numerous judges for exceeding his allotted time in pleadings, often in vain.
And the interlocutory applications he has filed in that case has seen the SCA concur with counsel for the state that the litigation “justifiably attracts the epithet Stalingrad’’.
The court said that in a ruling in October last year dismissing Zuma’s application to halt the implementation of a high court order that prohibited him from pursuing his private prosecution of state prosecutor Billy Downer and journalist Karyn Maughan as an abuse of process.
Ponnan noted that lawyers had a duty to safeguard the integrity of the rule of law.
“The duty requires that lawyers act with honesty, candour and competence; exercise independent judgement in the conduct of the case and not engage in conduct that is an abuse of process.”
He then made the point, without naming Mpofu, that long-winded theatrics was a poor substitute for preparedness.
“Brevity is the hallmark of good advocacy. Clarity of thought, logical coherence and conciseness of presentation are the product of painful preparation,” he continued.
“Exasperated sighs, soapbox oratory, empty rhetoric, political posturing, theatrical gestures and long-winded dismissive non-sequiturs have no place in a courtroom, particularly in response to searching questions from the bench.”
Mkhwebane, in reply to this in her constitutional court application, said it appeared to her from a desktop inquiry that Mpofu had more appellate experience in the SCA and the apex court “than all the honourable judges who unjustifiably and maliciously suggested otherwise, put together”.
She said the court record would show that there were no posturing or non-sequiturs from Mpofu’s side. Nor, she added, were there “any self-congratulatory ‘searching questions’ from the bench”.
Regarding Mpofu’s objectivity, she added: “The last diatribe is based on too many false premises to enumerate including the fact that Advocate Mpofu was not involved in many matters involving the same client.
“The proposal that I should have used another advocate is too personal and utterly distasteful.”
Mkhwebane conceded that her displeasure did not constitute grounds of appeal but said that the apex court must signal that judges may not treat counsel with “abusive disdain”.
“The defamatory references to ‘a certain class of practitioners’ and ‘a certain stamp of mind’ speak more to the insulter than the insulted,” she said.
“They must be rejected, condemned and reversed. The same goes for judges, whether active or retired, to call for the victimisation of practitioners whose only sin is to represent those who are hated by the establishment.”
Ultimately, Mkhwebane said, the criticism of Mpofu “severely compromised” her right to legal representation.
She added that the ruling would lead to a complaint against Ponnan to the Judicial Service Commission.
The commission told the Mail & Guardian none has been received.
Freedom Under Law placed its complaint on hold because the ethics committee does not have jurisdiction as Mkhwebane has not taken up a seat for the MK party, nor could she readily do so since party lists are closed for the time being. But executive officer Judith February said it would be revived if she were to return to parliament.
The draft complaint asked that the legislature impose strong sanction on Mkhwebane “in order to send a clear message that such attacks on the judiciary and individual judges are unacceptable under our constitutional democracy”.