Busisiwe Mkhwebane's urgent court bid to return to work set for Friday

Busisiwe Mkhwebane’s urgent court application to secure her immediate return to work will be heard on Friday, two sources have told TimesLIVE.

The public protector, whose suspension by President Cyril Ramaphosa was declared unlawful by the Western Cape High Court last week, had initially asked that it be heard this week Tuesday.

After the court order last week, Mkhwebane had been determined to return to work immediately. But the DA immediately appealed against the judgment to the Constitutional Court. The legal effect of the DA’s appeal was that Mkhwebane remained suspended.

Her “extremely urgent” application, launched on Saturday, would, if successful, allow her to return pending the Constitutional Court’s final say.

The president on Monday also filed an appeal to the Constitutional Court. Like the DA, the president’s legal team believes the suspension amounted to “conduct of the president” and that therefore the order of high court “has no force”, until it is confirmed by the Constitutional Court. Such orders give rise to an automatic right of appeal to the apex court.

Mkhwebane has strenuously disputed that the high court order has no force and said the only reason she is not back at work is because of the DA’s appeal.

The president’s legal team has also made a conditional application, in case the Constitutional Court disagrees with its view and agrees with Mkhwebane’s, for an application for direct access —  to appeal straight to the Constitutional Court, skipping over the Supreme Court of Appeal (SCA) and not being necessary to ask for permission to appeal from the high court. 

In their appeal, the president’s lawyers said the Western Cape High Court was wrong in how it concluded the president was biased when it came to Mkhwebane. In particular, many of the court’s conclusions had been arrived at with no evidence to support them, said the president’s court papers.

Meanwhile, deputy public protector Kholeka Gcaleka has also entered the fray, with her lawyers saying in a letter to the high court Mkhwebane’s statements about current investigations by the office of the public protector were “concerning”. She has instructed lawyers to intervene in Mkhwebane’s urgent case this week.

One of the reasons Mkhwebane cited for going back to the office over the weekend was “to tackle the urgent tasks awaiting at my office including the most urgent issue of the Phala Phala investigation”.

The public protector’s office, currently under Gcaleka, is investigating a complaint that Ramaphosa breached the Executive Code of Ethics, after the burglary at his Phala Phala game farm. 

The letter to the Western Cape High Court from the public protector’s office, sent on Sunday, said the office “noted numerous factual averments” in Mkhwebane’s application.

“These averments are concerning to the extent that they suggest that the office of the public protector is unable or ill-equipped to complete certain investigations in the absence of Adv Mkhwebane,” the letter stated.

It said lawyers for the office had been instructed to apply to intervene in Mkhwebane’s urgent litigation “to place necessary facts before this court” relevant to pending investigations.

In her court papers, Mkhwebane said there had been an “unprecedented and highly publicised” march to the offices of the public protector by several opposition parties represented in parliament. Their main grievance, said Mkhwebane, was “the perceived undue delay in attending to the urgent matter of Phala Phala”.

She said an undertaking had been given to the marchers that the matter would be looked at in the next seven days — “a period which expires on Friday September 16 which is around the corner”.

“Among others, this issue was uppermost in my mind in seeking to start over the weekend,” she said in her application.

Mkhwebane said the aim of the DA’s appeal was to “block me from going to my office” and “undo the legal effect of the judgment”.

“I felt very strongly that the process of the court was being severely abused.”  

TimesLIVE

Support independent journalism by subscribing to the Sunday Times. Just R20 for the first month.