Advocate Dali Mpofu speaks to Public Protector, Busisiwe Mkhwebane as she appears at the Pretoria Magistrates' Court on charges of Perjury on 21 January 2021. Picture: Neil McCartney
Advocate Dali Mpofu says Public Protector Busisiwe Mkhwebane remaining suspended while waiting for outcome of the Constitutional Court (ConCourt) is “an act of cruelty”.
Mkhwebane’s leave to appeal application – supported by United Democratic Movement (UDM), African Transformation Movement (ATM) and Pan Africanist Congress of Azania (PAC) – was heard by the Western Cape High Court on Tuesday.
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The Public Protector had filed the application following the high court’s reversal of its 9 September ruling, which declared President Cyril Ramaphosa’s decision to suspend the Public Protector as invalid and unlawful.
The court’s full bench on 11 October dismissed Mkhwebane’s bid to be immediately reinstated to her position and ruled that its order on her suspension was subject to confirmation by the ConCourt.
During the proceedings on Tuesday, Mpofu argued there is a “reasonable probability” that another court would reach to different conclusion regarding her suspension.
With the confirmation hearing set to take place in the ConCourt in November, Mpofu said it was “wrong on so many fundamental levels” that the high court would not be able to grant the leave to appeal to the Supreme Court of Appeal (SCA) as argued by the Democratic Alliance (DA) in their papers.
“Yes, the matter is going to be heard on the 24th of November, but that’s not the issue. The issue is whether the Public Protector must remain suspended as she is until the determination, not the hearing, of the confirmation proceedings,” he told the court’s full bench.
The advocate claimed that it would be unreasonable for Mkhwebane to remain suspended until such time that the ConCourt rules on the matter.
“Nobody knows when that will happen because the mere fact that something is going to be heard on the 24th of November does not mean that the judgment is going to come out [on that day]. The judgment might come out months later.
“So the [DA’s] argument really says the Public Protector must be left in her suspended position until some indeterminant date, which might be March or April next year, is just an act of cruelty because all it means is that she must just wait,” Mpofu continued.
He also said he was confident Mkhwebane’s appeal will be heard by the SCA on an urgent basis within a matter of weeks if granted.
Mpofu further insisted that the high court’s order granted on 9 September, which ruled that the Public Protector’s suspension was invalid, was not subject to the ConCourt’s approval.
Meanwhile, Ramaphosa’s lawyer, Karrisha Pillay, argued that Mkhwebane’s leave to appeal application was “an abuse of process”.
“It is not in the interest of justice for the leave to appeal to be granted [because] we have a date in the Constitutional Court [and] when that matter is determined it’s the end of the road for all parties,” she said.
Pillay said that she was of the view that the Public Protector’s application had no prospect of success.
“The question of prospect of success is a non-negotiable in being able to succeed in such an application,” she said.
She asked the court to dismiss the application as well as a punitive cost order against Mkhwbeane.
The DA is seeking the same court order, arguing that Mkhwebane’s application has no merit.
The judgment in the matter has since been reserved.
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