By Lehlohonolo Lehana.
Suspended Public Protector Busisiwe Mkhwebane to ask the Western Cape High Court for leave to appeal to the Supreme Court of Appeal (SCA) in her fight to return to office.
Mkhwebane wants to be allowed to approach the Supreme Court of Appeal (SCA) to have the invalidity of her suspension by President Cyril Ramaphosa to be effected immediately.
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.
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.”
But Mkhwebane contends that while the original judgment is pending appeal by the presidency and the DA, she should be allowed to return to work.
Mkhwebane said this is particularly so, given the gross illegalities that accompanied the decision to suspend her.
She added that it’s not in the interest of justice to remain off work.
The court has now been asked to hear the application for leave to appeal to the SCA, as soon as possible.