Suspended public protector Busisiwe Mkhwebane lost another application in the Western Cape High Court on Thursday and was ordered to pay costs in her personal capacity.
Judges Lister Nuku, Matthew Francis and James Lekhuleni declined her application for leave to appeal against their ruling that refused to allow her to return to work.
They said they had considered Mkhwebane’s submissions “but can find no redeeming features to persuade us that there is a reasonable possibility that another court would come to a different conclusion”.
Mkhwebane went back to them on an urgent basis on October 23 for a third time. In September the judges found her suspension by President Cyril Ramaphosa was unlawful — an important victory for her.
But when she tried to return to work she was unable to. The president and the DA said the judgment had no force until it was confirmed by the Constitutional Court. And because she was disputing their claim that it had no force, they also applied to appeal against the judgment which had the effect of putting it on hold in any event.
Mkhwebane went back to the Western Cape High Court for a second time in early October, asking for an order to allow her to go back to work, pending the appeal process. The judges refused. She then applied to appeal against that refusal, leading to Thursday’s judgment.
The judgment of “the court” said that in addition to her appeal having no prospect of success, granting her leave to appeal “would have no practical result”. This was because the Constitutional Court will soon hear argument on the lawfulness of her suspension and an appeal by her on whether she should be allowed to return to work in the meantime.
The apex court is due to hear argument on November 24.
“In a month that application and the issues raised in this application will be before the Constitutional Court. Clearly the SCA [Supreme Court of Appeal] will not be able to determine the appeal ... before the Constitutional Court hears and possibly decides on the pending appeal and applications,” said the Western Cape judges.
An application for leave to appeal to the SCA “will be an exercise in futility and a waste of public funds and judicial resources”.
The judges said any prejudice Mkhwebane “may suffer, if at all, would be minimal if leave to appeal is refused [and] is ameliorated by the fact that in a month’s time these issues will be debated before the apex court”.
The judges refused to make a punitive costs order against Mkhwebane, saying “it cannot be said that her application is fraudulent, dishonest or vexatious and that she engaged in conduct that amounts to an abuse of court process that would warrant an award of costs on an attorney-client scale”.
But the judges found it “concerning” that when the apex court had given an expedited hearing date, Mkhwebane, the UDM, the PAC and the ATM “nonetheless soldiered on with their applications for leave to appeal to the SCA”.
Mkhwebane’s application “was of no direct consequence to anyone else, save for her in her personal capacity,” they added. They therefore ordered her, in her personal capacity, as well as the UDM, ATM and PAC to jointly and severally pay the president’s and the DA’s costs.
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