Mkhwebane’s suspension ‘the employment equivalent of arrest’
The “predicament” of suspended public protector Busisiwe Mkhwebane was that “she is sitting for three months and a week now ... in circumstances where all she has ever done is to do her work”, said her counsel Dali Mpofu SC in the Western Cape High Court on Friday.
“The thing that put her in that position was that she was discharging her duties, investigating without fear, favour or prejudice. That’s all,” he said.
Mpofu was arguing that Mkhwebane would suffer “irreparable harm” if the court did not order she be immediately allowed to return to work.
Last week, it set aside her suspension by President Cyril Ramaphosa. The suspension remains in place for now after the DA and the president approached the Constitutional Court on appeal.
But Mkhwebane went urgently back to court in terms of section 18 of the Superior Courts Act, which allows the court to order differently in exceptional circumstances.
To succeed under section 18, Mkhwebane had to show the court three things: that there were exceptional circumstances; that if she were not allowed to immediately go back to the office she would suffer irreparable harm; and finally, that the other parties in the case would not suffer irreparable harm.
“The only predicament of the DA is vindictiveness and vengeance and hatred,” said Mpofu. It would suffer “zero, zilch” harm if she were to return to office, he said.
But the DA’s counsel, Steven Budlender SC, and Ramaphosa’s counsel, Karrisha Pillay SC, both argued that the harm the court had to think about was broader than just the parties. What also mattered was whether there would be irreparable harm to the institution of the public protector and the public interest if Mkhwebane were to go back to her office when there were such serious allegations, still to be answered, against her.
Mkhwebane is the subject of an ongoing impeachment process in parliament and there are six work subordinates yet to testify.
Budlender referred to earlier judgments that said “again and again” that harm to the public was a relevant consideration when deciding on the section 18 application it was not just about the president and the DA, as argued by Mkhwebane’s lawyers.
And when it came to the head of a chapter nine institution like the public protector, “it is all the more important that there is not someone in office over whom this enormous cloud looms”, he said.
Mpofu argued that suspension was the “employment equivalent to arrest” and that this therefore amounted to irreparable harm to her. But Budlender said this went against a number of binding judgments, including a unanimous judgment of the Constitutional Court, which all said that precautionary suspension did not amount to irreparable harm.
Budlender and Pillay also argued that Mkhwebane had not shown there were exceptional circumstances — another essential requirement to succeed on section 18.
Mpofu argued that if ever there was a case of exceptional circumstances, it was this one.
“What have we got here? We have a situation unprecedented; where the president of a country ... has, according to this court, abused that power, acted improperly.”
He said the court had found actual bias on the part of the president and a breach of the duty not to expose himself to situations that involve the risk of a conflict of interest.
“That’s what we have here. Now we are told those are circumstances that are just usual, this happens every day,” he said.
But Pillay argued that the requirement for exceptional circumstances went further than that the situation was, in general, unprecedented. What Mkhwebane had to show was exceptional circumstances that “warrant the operationalisation of the order”, she said.
Even before the court had to think about the requirement for section 18, both the president and the DA argued that section 18 did not even apply in this case.
They argued section 18 did not apply because the high court’s order had no force until it was confirmed by the Constitutional Court. This was because the court’s order was an order of constitutional invalidity about “conduct of the president” and the constitution said in section 172(2) that these kinds of orders had no force until they were confirmed.
Mpofu argued that section 18 was a form of “temporary relief” referred to in section 172(2), which parties could apply for when a judgment was awaiting confirmation. Counsel for the UDM and ATM, Thabani Masuku SC, argued that a portion of the court’s order setting aside the suspension was already an interim order — put in place to ensure justice and equity.
Judgment was reserved.