Mkhwebane's latest bid to hold on to her job, including a R50 million 'compensation' claim

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Public Protector Busisiwe Mkhwebane
Public Protector Busisiwe Mkhwebane
PHOTO: Jan Gerber, News24
  • Busisiwe Mkhwebane has approached the African Commission on Human and Peoples' Rights.
  • She accuses South Africa of violating her rights by seeking to remove her from office. 
  • Mkhwebane wants R50 million in damages and legal costs. 

It would seem Public Protector Busisiwe Mkhwebane is not going down without a fight after she approached the African Commission on Human and Peoples' Rights in a desperate bid to keep her job.  

In a last-ditch effort to stop the impeachment process against her, Mkhwebane approached the commission, saying the Republic of South Africa had violated her rights by seeking to remove her from office.

She also said South Africa had violated her rights, under Articles 7(1) and 26 of the African charter, which relate to the right of an individual to have their case heard and the duty of the state to guarantee the independence of the courts.

"The violations in the present case occurred within the territorial jurisdiction of the respondent [SA]," she argued. 

She wants the commission to find that the rule, which relates to the appointment of judges as part of the independent panel, is inconsistent.

In February, the apex court found that allowing a judge on the independent panel wasn't unconstitutional.

This meant the impeachment process could go ahead, with Mkhwebane - an advocate herself - allowed legal representation, if she so wished.

READ | Mkhwebane's mounting legal bill: Taxpayers cough up R67 million to defend reports, halt impeachment

Mkhwebane asked the Constitutional Court to rescind the ruling, but it was dismissed.

She then sought the rescission of that dismissal on the basis of an unsolicited text message sent to Parliament's legal representative during her ongoing legal campaign to stop the inquiry into her fitness to hold office.

In papers to the African commission, Mkhwebane said: 

As a result of the respondent's decision to attempt to remove the complainant from office through the process which involves appointment of a judge into the independent panel and also through the rules which violates the right to legal representation, the complainant had to challenge the impugned rules and partially succeeded in the high court and the Constitutional Court insofar as it relates to unconstitutionality of the rule denying legal representation during the enquiry under section 194 of the Constitution.

And, since she had to employ attorneys and advocates, she had incurred disbursements and legal costs.

Mkhwebane now wants South Africa to pay R50 million "as compensation for damages suffered" and legal costs incurred in the Western Cape High Court and the Constitutional Court.

She argued that she suffered "emotionally and financially" and "her integrity and human dignity have also been affected".

Her papers did not detail how the amount claimed was arrived at.

However, News24 reported last week that her office, which is funded by the public purse, spent R14.9 million in fighting the impeachment inquiry process.

Mkhwebane asked that, pending the finalisation of her complaint, the commission would order the suspension of the process to remove her from office in terms of Section 194 of the Constitution.

The matter is so important to the human dignity of the complainant [Mkhwebane] and is in the interest of justice, and that of the complainant, that the hearing of this complaint be on [an] urgent basis.

ALSO READ | Public Protector's office withdraws subpoenas against Kollapen, Mlambo over Abramjee text

She said the Constitutional Court had violated the right in Article 26 of the charter when it "misdirected itself by suggesting that it is not necessary to exclude a judge from the independent panel merely because the judge is only one of three-person panel and also that such a judge may be a minority on the recommendations".

She added: "This approach by the Constitutional Court lost sight of the fact that the judge may also find herself in the majority in decisions on the recommendations."

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