Former public protector Busisiwe Mkhwebane. (Leila Dougan/Daily Maverick/Gallo Images)
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 as public protector pending the outcome of a parliamentary impeachment inquiry was rendered unlawful by bias.
Mkhwebane sought to invoke section 18 of the Superior Courts Act, which states that a litigant in whose favour a judgment has been granted may apply for the operation of that order not to be suspended pending the decision of an appeal in the matter.
Section 18(3) allows for this to happen where the litigant can show that unless the order is executed before the appeal is decided, he or she will 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 Democratic Alliance (DA), who opposed the application, countered that not only their clients, but the country as a whole, would suffer prejudice if her powers were restored.
The presidency and the DA filed for leave to appeal shortly after the court, on 9 September, held that the hurried nature of the suspension, sandwiched between the announcement by Mkhwebane that she was probing the Phala Phala scandal and a ruling of the same court on her application for an interdict barring him from suspending her, led to the conclusion that Ramaphosa’s 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 in full the argument by advocate Steven Budlender 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.
“In other words, the authority to suspend the applicant is granted to the president in terms of a constitutional provision (section 194(3)(a) 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 in arguing that 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 where there may be a 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 and she fielded no argument in that regard.
The court ruled that the public protector should pay the costs to the DA, but did not punish Mkhwebane with a personal costs order, saying though she was wrong in law her application did not appear to have been 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, in the event, 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.
The fate of this application hinges on the interpretation of the judgment.
Here, it said, case law made plain that an order and the rationale for making it must be read together to determine the intention of the court.
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 “hurried” decision to suspend Mkhwebane must be read as retaliation for her decision to launch a probe into the scandal around the theft of foreign currency from his Phala Phala game farm. It followed two days after she launched the investigation.
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