The DA and public protector Busisiwe Mkhwebane are engaged in a legal battle over the implementation of a high court judgment that overturned her suspension by the president.
The DA has argued that Friday’s order by the high court in Cape Town to invalidate Mkhwebane’s suspension by President Cyril Ramaphosa was wrong and has no force or effect until confirmed by the Constitutional Court. The party says it will seek leave to appeal directly to the Constitutional Court against the high court’s decision to allow Mkhwebane to return to office.
The DA’s attorneys say the high court’s order is suspended by the party’s application for leave to appeal. But Mkhwebane does not accept this and has filed an urgent application to the high court in Cape Town for it to affirm that its ruling is effective immediately. Her attorneys reject the DA’s argument that the Constitutional Court has to affirm the high court judgment for it to take effect.
The presidency said in a statement it would seek guidance from the constitution on the next steps, while acting public protector Kholeka Gcaleka has told Mkhwebane the DA’s actions mean she cannot return to the office pending the outcome of the Constitutional Court proceedings.
The high court set aside Ramaphosa’s decision to suspend Mkhwebane “as unlawful, of a hurried nature and retaliatory” because — the court judgment reads — the decision to suspend the public protector came shortly after Mkhwebane announced her intention to investigate a complaint against Ramaphosa on the theft at his Phala Phala game farm in 2020 of an undisclosed amount in foreign currency.
Allegations around the theft at the farm were made by former state security agency head Arthur Fraser, who lodged a complaint with the police in June.
The high court in Cape Town said Ramaphosa’s decision to suspend the public protector “was certainly tainted by bias of a disqualifying kind and perhaps an improper motive”.
“In our view, the president could not bring an unbiased mind to bear as he was conflicted when he suspended the applicant,” the unanimous judgment of the full court says, with the request to suspend rejected “with the contempt it deserves”.
Urgent application
After the high court decision on Friday, Mkhwebane launched an urgent application asking the court to declare its invalidation of her suspension by the president “operational and executable … pending any application for leave to appeal and/or appeal” so she can return to her position and … “tackle the most urgent issue of the Phala Phala investigation”.
Court papers reveal that the DA sent an overnight application for leave/notice to appeal directly to the Constitutional Court, preventing Mkhwebane from going back to her office.
In her application, Mkhwebane states that the DA’s true intention is to undo the legal effect of the judgment and that their letter is aimed at reinstating the illegal decision of the president.
She adds that the process of the court is being severely abused and that the DA’s motives are aimed at preventing her from resuming her duties, “by hook or by crook and by any means necessary”.
Update: September 11 2022
This story is has new information throughout.
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