Suspended Public Protector Busisiwe Mkhwebane cries foul, heads back to court

Suspended Public Protector advocate Busisiwe Mkhwebane is crying foul as she heads back to the Western Cape High Court in yet another attempt to try and get back to office.

Mkhwebane has lodged an urgent application for leave to appeal this week’s High Court ruling dismissing her urgent application to return to work.

The High Court ruled that its September judgment that declared her suspension invalid and unlawful must be confirmed by the Constitutional Court for it to be effective.

Mkhwebane is waging yet another legal battle aiming to return her to office.

She scored a victory last month after the High Court declared her suspension unlawful. However, that ruling is being challenged by the Democratic Alliance (DA) and President Cyril Ramaphosa.

Mkhwebane is now at odds with the interpretation of the High Court that its decision must be confirmed by the ConCourt. She argues in court papers that there was no party that raised the issue of confirmation by the ConCourt, nor did the full bench raise the issue during her urgent application.

This was in response to the High Court’s ruling that there was no need for it to state categorically in its September judgment that the ruling would have to be confirmed by the ConCourt.

ConCourt confirmation

Mkhwebane argues that the court erred in repeatedly stating that the judgment has no force or effect until the ConCourt confirmation. Because if the judgment had no effect, then it should not be appealable by the DA and the President.

Mkhwebane has also taken issue with the High Court, arguing it was “erroneous” to expect parties to apply “common sense” by assuming the judgment is subject to confirmation when the Registrar did not interpret the judgment as needing confirmation by the ConCourt.

She goes on to say the registrar was not directed to refer the High Court judgment to the ConCourt until the prescribed expiry of the 15 days had lapsed because the High Court made no such indication to the Registrar.

Mkhwebane concludes to say this matter “cries out for interim protection” of her right to work.

Meanwhile, the ConCourt is expected to hear the DA and President’s appeal as well as consider the confirmation of the High Court judgment on 24 November.

Mkhwebane suffers yet another legal blow in her bid to resume her job