/ 16 September 2022

Can Mkhwebane suspend order on constitutionality?

Her side of the story: Public protector Busisiwe Mkhwebane has labelled Basani Baloyi’s allegations ‘mischievous’.
Suspended public protector Busisiwe Mkhwebane. (Jaco Marais/Foto24/Gallo Images)

The constitution tacitly allowed Busisiwe Mkhwebane to launch an application for the immediate execution of the high court order that her suspension as public protector was invalid, her counsel argued on Friday in an urgent bid to allow her to return to work.

Advocate Dali Mpofu sought to counter argument by lawyers for President Cyril Ramaphosa and the Democratic Alliance that Mkhwebane had no such recourse, as last week’s order that her suspension was tainted by “bias of a disqualifying kind” on the part of the president could only be executed if it were confirmed by the apex court.

“The constitutional court makes the final decision whether conduct of the president is constitutional,” the DA argued in its papers. 

“No order to that effect by any other court has ‘any force’ until it does so. If it has no force, it can neither be suspended, nor implemented. It is inchoate, imperfect and incomplete.”

Mpofu is seeking 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.

Mpofu said this applied to Mkhwebane, claiming that she is “the victim of the most egregious abuse of power in this republic”.

He added that the DA had suffered no prejudice, and had no real interest in whether she was restored to her position, but was being vindictive.

“Their interest is a perverse interest to ensure the oppression of a black woman,” he said.

Both Ramaphosa and the DA’s lawyers counter that not only their clients, but the country as a whole, would suffer prejudice if her powers were restored.

Mpofu went on to say that section 18 was promulgated specifically for cases such as this, where there was no risk of harm to one party but the other, who is asking the court to order the summary execution of the judgment, would suffer palpable, severe harm if this was not done.

The court was correct to declare the president’s decision to suspend Mkhwebane, two days after she sent him a list of questions on the burglary at his Limpopo game farm, a nullity and it should now likewise visit the suspension of the implementation of its order with nullity.

“The only way to do that is for restoration of the status quo ante,” Mpofu continued. Plainly put, she should be allowed to resume work. 

But on the argument advanced by the presidency and the DA, since the order has no force pending confirmation by the constitutional court, it follows that it can neither be suspended, nor implemented. 

It added: “On a purely textual basis, [section] 18 does not apply because this court’s order is not subject to an application for leave to appeal or an appeal. It is subject, by constitutional command, to confirmation.”

Moreover, section 18 of the SCA did not apply to orders on the constitutionality of executive action because to allow otherwise would be to annul the special status of the constitutional court.

Mpofu’s answer to this was that section 172(2)(b) of the constitution states clearly that a court which makes an order of constitutional invalidity may grant a temporary interdict or other temporary relief to a party, pending the decision of the constitutional court on the validity of the act or conduct in question.

If the drafters of the constitution had intended to exclude an application under section 18 of the SCA from the relief offered here, they would have said so explicitly.

But the DA contends that an order of the invalidity of the conduct of the president cannot, as a matter of principle, be subject to this enforcement mechanism in the SCA.

To hold otherwise would be to eviscerate the import of sections 172(2)(a) and 167(5) of the constitution, where case law had clearly confirmed it. The DA further argued that the high court had not, in stipulating that its order would not have retroactive effect, intended it to take immediate effect, without the need for confirmation by the apex court. And it insisted that the order was one of constitutional invalidity.

Mpofu’s reply was that they were digging themselves into a hole, but that ordinarily their remedy would lie in section 172(2)(d) of the constitution which says that any interested person may appeal to the apex court to confirm or vary an order of constitutional validity.  

He argued that the order was also, at least in part, made in terms of the common law because Mkhwebane’s application to challenge her suspension had been filed on that basis. Hence, he said, she should be in the same position as an applicant whose suspension had been found invalid by the labour court.

The common law argument has perplexed legal analysts who have, at the same time, criticised the judgment for 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 Phala Phala scandal.

Advocate Karrisha Pillay, for Ramaphosa, said the constitution was unambiguous that an order of unconstitutionality needed to be confirmed by the apex court.

Advocate Steven Budlender, for the DA, said the issue was dealt with two decades ago in jurisprudence. He argued that the onus of irreparable harm in section 18, if the court were to accept that it applied, rested squarely on Mkhwebane as the applicant.

He said it was simply not enough to say that this was an exceptional case.There was also ample case history of courts finding that suspension with pay was not prejudice of the order alleged by Mkhwebane and Mpofu.

At the close of pleadings, Mpofu argued that the court’s decision came down to a proper reading of section of section 172(2)(b) and that the presidency and the DA’s immediate steps in response to last week’s ruling showed that their argument that section 18 did not hold were spurious.

Both parties contested the confirmation of the high court order but, in the alternative, applied for direct leave to appeal it.