Africa-Press – South-Africa. Judgment has been reserved in Public Protector Busisiwe Mkhwebane’s court application for leave to appeal the court decision that prevented her from going back to office.
Two weeks ago, a full bench of the Western Cape High Court – judges Lister Nuku, Matthew Francis and James Lekhuleni – handed down a judgment, which confirmed the Constitutional Court must first confirm their order to overturn Mkhwebane’s suspension before it takes effect.
On 9 September, the same judges ruled President Cyril Ramaphosa’s decision to suspend Mkhwebane, a day after she announced her office would investigate him in terms of the Executive Members Ethics Act complaint over the 2020 break-in at his Phala Phala farm, and a day before the Western Cape High Court ruled on Mkhwebane’s attempt to interdict such a move, was improper.
The court stated: “In our view, the hurried nature of the suspension of [Mkhwebane] in the circumstances, notwithstanding that a judgment of the full court was looming on the same subject matter, leads this court to an ineluctable conclusion that the suspension may have been retaliatory and, hence, unlawful.”
After the DA launched an application to appeal that ruling to the Constitutional Court, thereby immediately suspending it, Mkhwebane brought an application for its immediate enforcement – which both the DA and Ramaphosa opposed.
The full bench dismissed this application and ordered Mkhwebane to pay most of the DA’s legal costs.
The court agreed with both the DA and Ramaphosa that the president’s decision to suspend Mkhwebane had to be referred to the Constitutional Court for confirmation “independent of any steps taken by any of the parties” – and, as such, that the law governing the immediate enforcement of orders “has no application” in this case.
The bench said advocate Dali Mpofu SC’s arguments on behalf of Mkhwebane “misstates the law and is a gross mischaracterisation of the reasons underpinning the court’s finding in this regard”.
“One would normally expect that, having identified the issues to be determined, the parties will be aware when a dispute entails a declaration of constitutional invalidity that requires confirmation by the Constitutional Court,” the judges stated in their ruling. “But, perhaps, this places too much reliance on the parties to apply their common sense.”
On Tuesday, however, Mpofu doubled down on his assertion the court’s ruling need not be confirmed by the Constitutional Court.
He characterised the other parties’ arguments, which convinced the court that this was the case, as “clever lawyering”, “legal gymnastics”, and “smoke and mirrors”.
Mpofu said:
He argued there were grounds for leave to appeal, as another court could come to a different conclusion.
Advocate Vuyani Ngalwana SC, for the UDM and ATM in support of Mkhwebane, said it was “cold comfort” to say the Constitutional Court would resolve the case.
“What happens in the meantime? The Public Protector, the head of a Chapter 9 institution, remains unprotected from the abuse of power that this court found unlawful,” Ngalwana argued.
Advocate Karrisha Pillay SC, for Ramaphosa, and advocate Michael Bishop, for the DA, argued the case would be heard by the Constitutional Court next month and leave to appeal to the Supreme Court of Appeal would have no practical effect.
“We have a set down date of 24 November [at the Constitutional Court]. When that matter is determined, it is the end of the road for all parties,” said Pillay
She added there could be no doubt the Constitutional Court should confirm the suspension ruling, saying the apex court’s jurisprudence was also clear on the matter.
“There is absolutely no prospect of success. The order speaks for itself,” Pillay said of Mpofu’s intended appeal to the SCA.
She submitted: “This application is an abuse of process.”
Pillay added she did not make this submission lightly, but in the context of this litigation.
She asked for a personal costs order against Mkhwebane, to which Mpofu responded: “How can it be justice that the Public Protector, who was unlawfully suspended by the president, must now pay the costs?”
He said Mkhwebane was the “victim here”.
“This court has a duty to protect the Public Protector,” Mpofu added.
Mkhwebane’s impeachment enquiry will continue on Thursday, where she will bring an application for the adjournment of the committee conducting an inquiry into her fitness for office.
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