Suspended Public Protector Busisiwe Mkhwebane will ask the Western Cape High Court for leave to appeal to the SCA the ruling that effectively keeps her from returning to office, reports News24.

On Tuesday, Judges Lister Nuku, Matthew Francis and James Lekhuleni handed down a judgment, which confirmed that the Constitutional Court must first confirm their order to overturn Mkhwebane's suspension before it takes effect.

On 9 September, the same judges ruled that President Cyril Ramaphosa's decision to suspend Mkhwebane, a day after she announced her office would investigate him in terms of the Executive Members Ethics Act complaint over the 2020 break-in at his Phala Phala farm, and a day before the Western Cape High Court ruled on Mkhwebane's attempt to interdict such a move, was improper.

After the DA launched an application to appeal that ruling to the Constitutional Court, thereby immediately suspending it, Mkhwebane brought an application for its immediate enforcement – which both the DA and Ramaphosa opposed.

The full bench dismissed this application in Tuesday's judgment and ordered Mkhwebane to pay most of the DA's legal costs.

The court agreed with both the DA and Ramaphosa that the President's decision to suspend Mkhwebane had to be referred to the Constitutional Court for confirmation 'independent of any steps taken by any of the parties" – and, as such, that the law governing the immediate enforcement of orders 'has no application' in this case. 

‘One would normally expect that, having identified the issues to be determined, the parties will be aware when a dispute entails a declaration of constitutional invalidity that requires confirmation by the Constitutional Court,’ the judges stated in their ruling.

‘But, perhaps, this places too much reliance on the parties to apply their common sense.’

This is the ruling Mkhwebane now wants to challenge at the SCA.

Full News24 report

Judgment