Mkhwebane’s bid to return to work fails
The Western Cape high court dismissed an urgent application to give immediate force to its finding that public protector’s suspension was invalid
The Western Cape high court on Tuesday dismissed an urgent application by Busisiwe Mkhwebane for the immediate execution of its earlier ruling that the decision by President Cyril Ramaphosa to suspend her, pending the outcome of a parliamentary impeachment inquiry, was rendered unlawful by bias.
Mkhwebane’s tilt at summary reinstatement rested on section 18 of the Superior Courts Act, but the same full bench that ruled the suspension unconstitutional last month, now said the Act did not apply because that ruling had no effect until it was confirmed by the apex court.
This was the case made out by the presidency and the Democratic Alliance (DA). The DA lodged an appeal with the constitutional court the day the ruling landed, saying it had an automatic right to do so as the ruling was subject to confirmation. But it also, in the alternative, applied for leave for direct appeal. In other words, it hedged for the risk that an automatic right did not arise.
Section 18(3) allows a litigant in whose favour a judgment is granted to apply for the implementation of that order not to be suspended while the other party takes it on appeal. For this to happen the litigant has to show that he or she will otherwise suffer irreparable harm, while the other side will not.
Her counsel argued that this was indeed the case for Mkhwebane, while lawyers for Ramaphosa and the DA countered that not only their clients, but the country as a whole, would suffer prejudice if her powers were restored.
Ramaphosa suspended
Mkhwebane on 9 June, two days after she launched a probe into the Phala Phala scandal. The high court ruled that the timing led to the conclusion that his decision may have been retaliatory and hence unlawful.
“It was certainly tainted by bias of a disqualifying kind and perhaps an improper motive,” judges James Lekhuleni, Matthew Francis and Lister Nuku said in that judgment.
Once the DA filed for leave to appeal, Mkhwebane responded by filing an urgent application in terms of section 18.
But the high court said it was not surprising that neither Mkhwebane nor the smaller opposition parties that supported her application referred to case law in support of the argument that section 18 of the Act would, if she made out a case of grave harm, allow for her immediate reinstatement.
“Indeed, their submissions in this regard were long on sophistry but short on legal authority,” it said.
The court agreed with the respondents that the order that the suspension was unconstitutional had no effect until confirmed by the constitutional court.
It accepted the argument by advocate Steven Budlender SC for the DA that section 18 could not apply as it had the effect of suspending a binding order pending an appeal or application for leave to appeal, whereas an order of constitutional invalidity was not binding pending confirmation by the apex court.
This, the court said, was the case here as it had pronounced on the validity of conduct on the part of the president.
“Since the constitutional court makes the final decision whether or not the conduct of the president is constitutional, it follows that this
court’s order declaring the president’s decision to be unconstitutional has to be confirmed before it can be of any force or effect,” the full bench said.
“The judgment cannot be suspended. Nor can it be operationalised or executed simply because there is nothing that can operate or upon which execution can be levied.”
It added: “The relevant orders have not been confirmed, and irrespective of the wording used, there is nothing that can be suspended. The judgment has no independent existence but is conditional upon confirmation by the constitutional court.”
Mkhwebane’s lawyer, advocate Dali Mpofu SC, had sought to draw a distinction between a decision and conduct of the president and submitted that it was only conduct and not decisions that fall to be referred to the constitutional court for confirmation.
“No authority was provided for this submission, which is not surprising,” the court remarked.
The apex court has in a number of cases characterised a decision of the president as constituting conduct on his part, the invalidity of which required confirmation, the court said.
It also rejected the argument by Mpofu that the declaration of his client’s suspension as unlawful was rooted in the common law, hence section 18 could apply.
“[It] misstates the law and is a gross mischaracterisation of the reasons underpinning the court’s judgment in this regard.”
It said the ruling was based on the exercise of a constitutional duty to consider Mkhwebane’s suspension once the impeachment inquiry started.
“The authority to suspend the applicant is granted to the president in terms of a constitutional provision … and when he suspended the applicant, the president was exercising a public power conferred on him by the constitution.”
It said the DA was correct to argue the court’s finding was based on the principle of legality and the president’s breach of a constitutional duty not to involve himself in a decision with possible conflict of interest.
The court defended its decision in September to hold that the remedy given to Mkhwebane was not retroactive, saying if it had done otherwise, the ruling would have no positive effect, but would simply disrupt the running of the office of the public protector.
“It is as simple as that.”
Hence Mkhwebane was misguided in arguing that the court’s intention had been to provide her with “temporary relief”.
“Nowhere in the judgment does the issue of temporary relief arise.”
Again, it noted that this was not surprising, as her challenge to the lawfulness of the suspension did not go towards temporary relief.
The court ruled the public protector should pay the costs to the DA, but did not punish Mkhwebane with personal costs, saying though she was wrong in law her application was not pursued frivolously.
The court dismissed the application by acting public protector Kholeka Gcaleka to intervene in the matter, as neither she nor the office of the public protector were adversely affected by its judgment.
The court did not award costs against Gcaleka, as it deemed the application not to have been frivolous, but motivated by concern for the integrity of the institution. However, that did not translate into a legal interest in the case.
Legal commentators have criticised the court’s initial judgment as setting an improbable standard for presidential conduct and holding, as a fact, that Ramaphosa’s decision to suspend Mkhwebane must be retaliation for her decision to launch a probe into the theft from his Phala Phala game farm.
The court ventured that the expansive nature of thee questions she sent him about the events that transpired in 2020 might well have led him to think “there she goes again”, and to conclude he’d be better off with anybody but her leading the investigation.
The apex court will hear the applications to appeal the order of invalidity on 24 November.
Nonetheless, Mkhwebane on Wednesday filed for leave to appeal this week’s high court ruling.
The court [found] the order that the suspension was unconstitutional had no effect until confirmed by the apex court