Locked out for now: High court reserves judgment in Busisiwe Mkhwebane reinstatement bid

On Friday, 16 September, what should have been — according to advocate Dali Mpofu, for Busisiwe Mkhwebane — a simple application of Section 18 (4) of the Superior Courts Act, stretched into the twilight hours as various legal teams picked apart South African law, hurled insults and sketched diabolical political conspiracies.

There were accusations of the abuse of state power, “the highest form of corruption”, according to Mpofu. He said his client had been the victim of “the most egregious abuse of power in the republic” and that Mkhwebane’s suspension by Rampahosa had been “the most exceptional thing to happen”.

In fact, Mpofu cranked it up a notch, claiming Mkhwebane’s suspension was the equivalent of capital punishment.

“We can’t keep the Public Protector in a dungeon because there is a possibility that PP staff could still testify before the Section 194 [parliamentary impeachment] inquiry,” he protested.

“The Public Protector has no safeguard,” said Mpofu, pausing briefly to add that “her only safeguard is the three justices sitting here.”

Lawfare

This front of Mkhwebane’s lawfare began on Friday, 9 September, when a full bench of the Western Cape High court comprising Judges Lister Nuku, Matthew Francis and James Lekhuleni, found that President Cyril Ramaphosa had been conflicted when he decided to suspend Busisiwe Mkhwebane. The judges overruled the President’s order.

This prompted the Democratic Alliance to immediately approach the Constitutional court seeking to appeal against the high court ruling. 

The DA argued that sections 167(5) and 172 (2) of the Constitution applied in this instance. Here, the law made provision for the high court order to be placed on ice while it was on appeal at the Constitutional Court.

Soon afterwards, Mkwebane and Mpofu loaded Section 18 (4) of the Superior Courts Act into their legal arsenal to seek her immediate reinstatement, regardless of appeals. But Mkhwebane, in this instance, had to show “exceptional circumstances”.

There were more than enough of those, according to Mpofu; however, he failed to demonstrate any.

The political fault lines that have rippled outwards in the aftermath of Mkhwebane’s suspension by the President and her Section 194 impeachment inquiry were also evident as the United Democratic Movement, the African Transformation Movement and the Pan Africanist Congress joined Mkhwebane in her bid for immediate reinstatement.

‘Coalition of the wounded’

Represented by advocates Vuyani Ngalwana and  Thabani Masuku, the political parties used the legal platform to label the DA and the President as “a coalition of the wounded”.

Ngalwana said that never before had the head of a Chapter 9 institution been in the “crosshairs of the President and an opposition party”.

In that sense, the UDM, the ATM and the PAC seem to suggest they were not “opposition” parties — or perhaps they are more “loyal” than the DA.

The appeal to the Constitutional Court amounted, according to Ngalwana and Masuku, to the DA’s trudging to “the ends of the earth” to stop Mkwebane from investigating the President.

In this one-dimensional realm, it was Mkhwebane’s announcement of her investigation of the break-in and theft of foreign currency from the President’s Phala Phala game farm that had been “the kiss of death” for her career.

---

Visit Daily Maverick's home page for more news, analysis and investigations

---

In Mpofu’s world, the DA’s right in a constitutional democracy to approach the Constitutional Court was driven by “vindictiveness and vengeance and hatred”.

The country’s largest opposition party, argued Mpofu, sought to “oppress” Mkhwebane, “a black woman whose only sin is doing her work”.

Mpofu told the court that he actually taught students about “the abuse of court process and using the machinery of the court not for the purposes intended”.

The country was not a “banana republic” where “people can use clear subterfuge to achieve nefarious ends”.

None of the parties who had applied, neither the President nor the DA, “had clean hands”, charged Mpofu.

Surprise application

Earlier in the day, both Mpofu and Mkhwebane, who did not attend Friday’s hearing, were hoping for a swift ruling in their favour, but a surprise application by acting Public Protector Kholeka Gcaleka to intervene in the matter slowed proceedings.

Gcaleka had wanted to set straight some “facts” she claimed Mkhwebane had misrepresented.

Citizens in the virtual ringside seats seeking a lesson in South African law sans the drama, theatrics and insult were treated to politically fat-free legal arguments by advocates Karrisha Pillay, for Ramaphosa, and Steven Budlender for the DA.

Pillay argued that while the high court may make an order against the President, an order of unconstitutionality needed to be confirmed by the Constitutional Court.

While 172(2)(b) of the Constitution enabled the granting of an interim interdict in relation to cases involving invalid “conduct” by the President, she highlighted that Mkhwebane had failed to raise this when she sought the urgent enforcement of the high court’s order invalidating her suspension. Instead, she pursued her case under section 18(1) of the Superior Courts Act.

Section 18 did not apply in this matter precisely because the Constitution required an order of invalidity to be confirmed by the apex court, argued Pillay. Mkhwebane had not shown any exceptional circumstances.

The Constitution, however, stated in unambiguous terms that any order relating to the “conduct” of the President had no force until confirmed by the Constitutional Court. 

‘Political sideshow’

Budlender said he would not involve himself in the “political sideshow” Mpofu had “tried to advance in his arguments” as the matter was “about the application of the law”.

He argued that the high court had not been asked to make its order of invalidity concerning Mkhwebane’s suspension in relation to 172(2)(a) and (b) of the Constitution.

He set out that the Section 194 inquiry into Mkhwebane’s fitness to hold office had revealed “concerning” information about her conduct. She had also been repeatedly admonished by the courts, he reminded the judges.

“The extensive evidence led thus far includes serious allegations of abuse of her power in her treatment of officials, close and unexplained links with the State Security Agency and direct instructions to officials to investigate some people and not to investigate others for political reasons,” said Budlender in his heads of argument.

For Mkhwebane to return to her office would pose a risk, he said, to witnesses still due to testify at the 194 inquiry.

Mkhwebane’s application, said Budlender, had been brought on an urgent basis when none existed and therefore she should pay costs. Over and above this, he said,  Mpofu and Mkhwebane had made “the most extraordinary and unjustified allegation against the DA”.

He said Mkhwebane was pursuing the litigation personally and not in the interests of the office of the Public Prosecutor of South Africa.

Judgment was reserved. Meanwhile, Mkwebane may not return to the office or the job. DM