Suspended public protector Busisiwe Mkhwebane has urgently applied to appeal Tuesday's judgment that rejected her bid to immediately return to work.
Asking to be heard “as soon as possible”, Mkhwebane said it could not be in the interests of justice that she remain suspended “given the gross illegalities and breaches of the constitution and common law” that accompanied her suspension.
“This matter cries out for the interim protection of the rights of the public protector, including her right to work,” said the application for leave to appeal, filed in the Western Cape High Court on Wednesday.
The application followed Tuesday's judgment that dismissed Mkhwebane's application to be allowed to immediately return to work, saying the Constitutional Court was yet to have its say on its September order that set aside her suspension.
The high court declared Mkhwebane's suspension by President Cyril Ramaphosa unlawful and set it aside. In its Tuesday judgment, it said this order had no force until it was confirmed by the Constitutional Court.
“As the Constitutional Court makes the final decision whether the conduct of the president is constitutional, it follows that this court's order declaring the president's decision to be inconsistent with the constitution has to be confirmed before it can have any force or effect,” said judges Lister Nuku, Matthew Francis and James Lekhuleni.
The constitution says an order of constitutional invalidity on “any conduct of the president” will have “no force unless it is confirmed by the Constitutional Court”.
The judges said it was clear that their earlier judgment dealt with conduct of the president: “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.”
But in the application for leave to appeal, Mkhwebane's legal team said no-one had raised the need for the judgment to be confirmed during the hearing and the earlier court order had “specifically excluded any reference to 'conduct' of the president but referred to his 'decision'".
The constitution allowed for temporary relief, pending confirmation proceedings in the Constitutional Court, said the application, adding the matter “cries out” for interim protection for the public protector.
The DA and the president immediately approached the Constitutional Court after the September judgment. In their court papers, filed separately, they each said the judgment needed to be confirmed in terms of the constitution; but they said, in the event that they were wrong on this score — this aspect was hotly disputed by Mkhwebane — they were also applying for direct leave to appeal to the apex court.
The Constitutional Court has directed their cases be consolidated and it will hear them on November 24.
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