The South African Human Rights Commission (SAHRC) reminded citizens that while the judiciary is not above criticism, this should be done within the ambit of the law, referencing the statement issued by MP Advocate Busisiwe Mkhwebane following her unsuccessful appeal bid in the Supreme Court of Appeal (SCA).

In the statement, Mkhwebane criticised the judiciary and alleged persecution by key figures among the legal fraternity who are South Africans of Indian descent.

She further said the SCA's decision to strike her appeal to remove the chairperson of the Section 194 Committee that was involved with her impeachment, as well as a Democratic Alliance MP that was on the committee, marked a significant setback, not just for her personally but for all those who believed in her role as a protector of public rights and accountability.

The Commission said it noted the public discourse that followed Mkhwebane’s statement, wherein members of the judiciary, academia, civil society organisations and society more broadly raised concerns about the racial undertones of the statement.

“Moreover, the right to freedom of expression enshrined in Section 16 of the Constitution must be exercised with due regard to the rights of others, as well as the internal limitations of that right. In this regard, Section 16 (1) of the Constitution stipulates that everyone has the right to freedom of expression, but it should not extend to advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm, as seen on some social media messaging,” it explained.

The Commission said it was closely monitoring the matter, having also noted the public reports about the intention of some interest groups to approach the Commission for intervention.

The Commission said it remained committed to ensuring that no individual or institution undermined the rights to equality, dignity, and justice that were enshrined in the Constitution and in particular the responsibility to protect the judiciary as one arm of the State.

The SAHRC cautioned the public against divisive and discriminatory rhetoric.

“…similarly, public representatives are enjoined by the Constitution to act in a manner that is consistent with their oath of office when making public utterances, particularly when making public utterances that have the potential to bring the judiciary into disrepute on issues that may stir further division in our already fractured society,” it added.