By Lehlohonolo Lehana.
The Western Cape High Court refused suspended Public Protector Busisiwe Mkhwebane’s application for leave to appeal her suspension to the Supreme Court of Appeal (SCA) and slapped her with a cost order.
The court found the SCA hearing the matter would be a waste of time and court resources.
In September, the court ruled that her suspension was invalid but could not return to office pending confirmation by the Constitutional Court.
Mkhwebane approached the court for leave to appeal to the Supreme Court of Appeal, despite a hearing on the matter being set down for 24 November in the Constitutional Court, after the DA and Ramaphosa lodged appeals.
Arguing the application on Mkhwebane’s behalf, advocate Dali Mpofu SC, doubled down on his assertion that the Constitutional Court needed not confirm the court’s ruling setting aside Mkhwebane’s suspension.
He characterised the other parties’ arguments, which convinced the court that this was the case, as “clever lawyering”, “legal gymnastics”, and “smoke and mirrors”.
“If this court fell for it, fine. Another court might not,” said Mpofu.
He argued there were grounds for leave to appeal, as another court could come to a different conclusion.
The full Bench didn’t agree. Its judgment, handed down on Thursday, reads: “We have carefully considered the submissions of the applicant [Mkhwebane] and the supporting respondents [UDM, ATM, PAC] but can find no redeeming features that persuade us that there is a reasonable possibility that another court would come to a different conclusion.”
The court had another “compelling reason” to turn down Mkhwebane’s application.
“If leave is granted to appeal to the SCA, it would have no practical result.”
“In our view, granting leave to appeal in this case would lead to a piecemeal adjudication and delay the determination of the dispute. In addition, leave to appeal to the SCA in these circumstances would be impractical and a waste of public funds, time and judicial resources.”