Mkhwebane wants to appeal ruling which prevents her from returning to office

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Suspended Public Protector Busisiwe Mkhwebane at her impeachment hearing.
Suspended Public Protector Busisiwe Mkhwebane at her impeachment hearing.
PHOTO: Jan Gerber/News24
  • Busisiwe Mkhwebane asked the court for leave to appeal to the SCA a ruling that prevented her from returning to office.
  • Mkhwebane asked the court to enforce its order overturning Cyril Ramaphosa's decision to suspend her.
  • The full bench said the order to overturn Ramaphosa's decision to suspend must first be confirmed by the Constitutional Court.  

Suspended Public Protector Busisiwe Mkhwebane will ask the Western Cape High Court for leave to appeal to the Supreme Court of Appeal (SCA) the ruling that effectively keeps her from returning to office.

On Tuesday, Judges Lister Nuku, Matthew Francis and James Lekhuleni handed down a judgment, which confirmed that the Constitutional Court must first confirm their order to overturn Mkhwebane's suspension before it takes effect.

On 9 September, the same judges ruled that 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.

READ | 'Long on sophistry, short on legal authority': High Court slams Mkhwebane's bid to return to work

The full bench dismissed this application in Tuesday's judgment 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."

This is the ruling Mkhwebane now wants to challenge at the SCA.

The spokesperson for the Jacob Zuma Foundation, Mzwanele Manyi, tweeted the covering page of Mkhwebane's urgent notice to apply for leave to appeal. 

Mkhwebane's intended appeal comes somewhat as a surprise, as the Constitutional Court is set to hear the matter next month. 

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