Former guardian Busisiwe Mkhwebane (left) has asked the court for leave to challenge the dismissal of a mock appeal and reprimand the judge who criticized Dali Mpofu (right). (Photo: Luba Lesolle/Gallo Images via Getty Images)
Impeached former public protector Busisiwe Mkhwebane, in a submission to the Constitutional Court, accused Court of Appeal judge Visvanathan Ponnan, whom he appointed last month, as part of an Indian conspiracy to deny him his constitutional rights. repeated attacks on
In an October judgment, she accused Mr Ponang of defaming his lawyer, Dali Mpofu, in the High Court's response to one of a series of legal challenges that led to his dismissal in September. Appeal from dismissal dismissed.
And she explicitly asked the Supreme Court to condemn Ponnan for the “despicable” personal attack on Mpofu.
“The time has come for this honorable court to pass judgment on judges who launch unwarranted personal attacks on lawyers appearing to enforce the rights of their clients,” Mkhwebane said in a written statement. I stated this after stating the legal basis. bring the action.
Mr Mkhwebane will be at the Western Cape High Court in May 2023 to dismiss an interlocutory motion to force the removal of Parliament's Article 194 Impeachment Inquiry Chairperson Khubdile Dhyanti and one of its members, Kevin Mileham of the Democratic Alliance. I am trying to challenge the court's decision.
The High Court said it would not be appropriate to allow a partial review of these procedures.
A full bench of the Supreme Court of Appeal (SCA) rejected her appeal in October, in a ruling by Ponant that began by describing the issue as “increasingly bizarre”.
The court found that the appeal was brought in the name of the public protector when Mr Mkhwebane was no longer in office and was not properly submitted to the court.
Mr Mkhwebane then launched a court attack against X, saying he was “deeply disappointed and disappointed”.
She went on to accuse Ponnan of arrogance and bigotry, saying, “The ongoing struggle has consistently involved key figures, mainly of Indian descent, who have positioned themselves as my persecutors. “There is,” he said.
Mr Mkhwebane named, among others, the late Minister Pravin Gordhan, who successfully challenged the adverse findings of the so-called Revenue Agency's Fraud Information Report. Parliament's Chief Legal Adviser Zuraya Adhikarye, Evidence Leader for the Section 194 Inquiry. Advocates Nasreen Bawa SC and former South African Revenue Service Commissioner Ivan Pillay.
Her outbursts were condemned by the judiciary and parliament, which said there was no place for “racial slurs” in a democratic society and reminded Mkhwebane at the time that as an MP he had a duty to uphold constitutional values. Ta.
Mkhwebane later partially apologized to Parliament's legal advisers, who she said were “diligent”, but not to the SCA judges who rejected the application.
Had she not resigned as an MP for the Economic Freedom Fighters in mid-October, the former public protector would have faced charges from Freedom Under the Law to Parliament's Ethics Committee and MPs' Interests for scandalizing the court. I would have accepted it.
Mr Mkhwebane, like Mr Mpofu, defected to the Umkhonto Wesizwe (MK) party last week.
In his application to the Supreme Court, Mkhwebane did not make any racial inferences about Ponang, but accused him of going off topic and bullying Mpofu.
This is despite the fact that the SCA judgment, handed down on 1 October, was a unanimous judgment with the concurrence of Justices Mokgele Masipa, Caroline Nichols, Evette Dippenaar and Selewe Mosle. It is a fact.
The court found this appeal to be invalid, without merit, and frivolous.
The ruling came amid an investigation that had been finalized long ago, and three subsequent decisions on her fitness to hold public office, “none of which were contested.” could not be filed.”
The commission's recommendation to remove her, the parliamentary vote in support of that recommendation, and President Cyril Ramaphosa's decision to remove her all stood.
“Absent an objection to these decisions, no order of this court may prevent its validity.''
Ms Ponnan said the court was obliged under section 172(1)(a) of the Constitution to strike down the conduct that Ms Mkhwebane claimed had violated her rights, and that the technicalities were such that Ms Mpofu's rights were not affected. He pointed to Mr Mpofu's argument that he should not be allowed to interfere. Client proving those rights.
However, this clause was not raised in Mr Mkhwebane's notice of claim. This meant that Mr Mkhwebane could not rely on this clause in his petition.
Ponnan then said he needed to comment on the way the case was argued. He noted that the petitioner's attorneys “did not mention or even hint” at any of the points the court found to have an impact on the issue, such as lack of argument or position. He said it was worth paying attention to.
Despite being warned in advance that she would be required to speak to the court on certain points, her lawyers “did not appear to be sufficiently familiar with the relevant authorities” to assist the court.
“Those who practice before this court are expected to be knowledgeable, not just nods, about the relevant rules and established jurisprudence of this court,” Ponnan wrote.
“Advanced skills in legal research, analysis, and writing are an essential part of an appellate practitioner’s toolkit. The claim that he turned a blind eye is completely unacceptable.”
The court said Mkhwebane should have been advised by his lawyer that there was no case.
“When lawyers are involved in many matters involving the same client, as here, they can easily become convinced of the merits of their client's cause, often to the client's detriment. Yes,” Ponant wrote.
“Unless this issue is approached from a detached perspective, legal representatives may become narrow-minded and lose all objectivity.
“If the lawyers had slowed down a little more, or if Ms Mkhwebane had taken the advice of a disinterested lawyer trained in appellate practice, she would have been advised not to proceed with this appeal. It was clearly invalid.
“It is inconceivable that any reasonable legal practitioner would disagree with this assessment.”
Mpofu, who is defending MK party leader Jacob Zuma in his arms-dealing corruption case, has been asked by a number of judges to order him for exceeding the allotted time for arguments, but the arguments are in vain. It often ends.
And in an interlocutory application he filed in the case, the SCA agrees with state lawyers that the case “justifiably attracts the epithet Stalingrad.”
According to the court, Zuma's judgment in October last year sought to halt the implementation of a High Court order barring Zuma from privately prosecuting state prosecutor Billy Downer and journalist Karin Maughan as an abuse of process. application was rejected.
Ponnan noted that lawyers have a duty to uphold the integrity of the rule of law.
“This duty requires lawyers to act with integrity, candor, and competence; to exercise independent judgment in the conduct of cases and not to engage in conduct that would amount to an abuse of process. .”
Without naming Mr Mpofu, he argued that long plays were a poor substitute for preparation.
“Brevity is the hallmark of good advocacy. Clarity of thought, logical consistency, and brevity of presentation are the result of painstaking preparation,” he continued.
“Exasperated sighs, soapbox arguments, empty rhetoric, political posturing, theatrical gestures, and lengthy negative and unequal statements are especially important when responding to follow-up questions from the court. , has no place in the courtroom.”
Mr Mkhwebane responded in a submission to the Constitutional Court, saying that a desk investigation found that Mr Mpofu's appellate experience in the SCA and the Supreme Court “unfairly and maliciously impugned all reputations that suggested otherwise.” “It seemed like more than all the judges combined,” he said. .
She said court records would show that there was no attitude or non-recourse on Mpofu's part. He also added that there were no “self-congratulatory 'searching questions' from the bench.”
Regarding Mpofu's objectivity, she added: “The last criticism is based on too many false premises to list, including the fact that Mpofu is not involved in many matters involving the same client.
“The suggestion that a different advocate should have been used is deeply personal and deeply offensive.”
Ms Mkhwebane acknowledged that her discomfort was not a ground for appeal, but said the Supreme Court needed to inform judges that they must not treat lawyers with “abusive contempt”.
“Disparaging references to “certain practitioners'' or “certain beliefs'' appeal more to the insulter than to the insulted person,” she says.
“They must be rejected, denounced and overturned. They victimize practitioners, active or retired, whose only crime is to defend those hated by the establishment. The same applies to judges who require
Ultimately, Mkhwebane said the criticism of Mpofu was a “serious breach” of her right to legal representation.
She added that the judgment would lead to charges being filed against Ponnan before the Judicial Commission.
The committee stated: email and guardian I haven't received anything.
Freedom Under Law means Mr Mkhwebane has not won a seat in the MK party and cannot win a seat immediately as the party list is closed for the time being and the Ethics Commission has no jurisdiction. Because there was no evidence, the charges were deferred. But Executive Director Judith February said it would be reinstated once it returns to Congress.
The draft complaint calls for the legislature to impose strong sanctions on Mkhwebane “to send a clear message that such attacks on the judiciary and individual judges are unacceptable in our constitutional democracy.” I'm asking you to.
