A full bench of the Western Cape High Court on Tuesday dismissed the latest bid by suspended public protector Busisiwe Mkhwebane to return to work.
Straight from a victory in the same court that found her suspension by President Cyril Ramaphosa to be illegal, Mkhwebane brought a case on an “extremely urgent” basis last month, to be allowed to return to work. This was after the DA appealed against the ruling that she had been suspended illegally.
The high court found that its prior ruling — that Ramaphosa’s suspension of Mkhwebane was invalid — is not in force until it is confirmed by the Constitutional Court.
By law, any decision by a president declared invalid in a lower court must be confirmed in SA’s highest court before it
is effective.
“The issues raised in the judgment are weighty, and a speedy resolution is in the interests of all concerned and, above all, in the interests of justice,” the judges said.
Mkhwebane thought the high court’s finding of September 9 that Ramaphosa suspending her was invalid meant she could resume her duties right away.
But within half an hour of that decision being handed down, the DA wrote to her saying the ruling was ineffective until it was confirmed by the apex court.
The opposition party acted quickly, approaching the Constitutional Court with notice of intent to confirm the high court order. President Ramaphosa soon followed suit.
Mkhwebane argued for the high court’s invalidity order to be put into action in a hearing on September 16.
Deputy public protector Kholeka Gcaleka, acting in Mkhwebane’s stead while she is suspended, asked to join the case. But the bench refused.
She wanted to make submissions on Mkhwebane’s claims about the office’s function in her absence, including the Phala Phala investigation.
Mkhwebane began work on the probe into Ramaphosa’s alleged criminal conduct in connection with a gang robbery of US dollars in cash from his farm.
She asked the high court to find its order declaring invalid Ramaphosa’s suspending her was “immediately executable” and it did not need confirmation.
But until the apex court decided on the issue, argued the DA, the high court order could not be enforced.
Oversight
The bench agreed that the Constitutional Court held a “special place” and its order of September 9 was “subject to the express oversight. Since the Constitutional Court makes the final decision whether the conduct of the president is constitutional, it follows that this court’s order ... has to be confirmed before it can be of any force of effect.”
The high court found that while its September 9 judgment could not be operationalised or executed, it also could not be suspended and was still valid.
“It is a valid judgment on all the issues in dispute albeit that the judgment is of no force and effect and is conditional on confirmation by the Constitutional Court,” the judges wrote.
They said that high court was not obliged to include a direction for the to court to confirm its order.
Even if the high court order had included a direction for confirmation, they said, it was “unlikely to have deterred the resultant legal skirmish” due to the “fractious nature” of the parties’ relationship.
The high court found that the DA was “substantially successful” and that Mkhwebane should pay its costs. But it decided she should do so in her official capacity as “it does not appear the application was pursued recklessly or frivolously or vexatiously or in bad faith”.
The bench excluded costs for some paperwork the DA filed in error. Because of the opposition party’s “burdensome conduct” those costs were deducted.
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