Public Protector Busisiwe Mkhwebane’s attempts to back out of a potentially bruising Constitutional Court showdown over the legal limitations of her powers have failed.

The court will hear Mkhwebane’s urgent attempt to appeal against a High Court ruling in favour of Public Enterprises Minister Pravin Gordhan – despite Mkhwebane attempting to withdraw that appeal, and after President Cyril Ramaphosa argued she should not be allowed to do so.

It suggests the hearing could not be coming at a worse time for Mkhwebane, who is the subject of a potential parliamentary inquiry into her fitness to hold office.

Chief Justice Mogoeng Mogoeng’s order means Mkhwebane will have to go back to court to defend a case her lawyers had advised her she could not win. The Office of the Chief Justice declined to give reasons why he wanted the matter to go ahead.

Mkhwebane had initially appealed against a judgment by Judge Sulet Potterill suspending the Public Protector’s order that Ramaphosa take disciplinary action against Gordhan over the SARS ‘rogue unit’.

She approached the top court claiming Potterill’s findings stripped her of the support and assistance necessary to promote ‘constitutional governance’. She also said Potterill’s order was rendering her work ineffective.

Potterill found that if she did not grant an interim interdict staying remedial action, Gordhan would suffer irreparable harm.

A few weeks later, Mkhwebane withdrew that urgent appeal, citing legal advice.

Losing this case again will reinforce public perceptions that she is out of her depth in the job and incompetent.

It will also reinforce claims that she is using her office to dabble in factional battles within the governing party, says Business Day.

Full Business Day report