Political pundits may well speculate as to why suspended Public Protector Busisiwe Mkhwebane is so determined to return to work, right now, before the Constitutional Court has had its say.

From a legal point of view, notes Sunday Times legal writer Franny Rabkin, her insistence on returning immediately is odd.

After all, the legal obstacles are great and the wait for the Constitutional Court not so long.

As previously reported, the Western Cape High Court on Tuesday dismissed Mkhwebane’s application that would have allowed her to return to office.

Her suspension by President Cyril Ramaphosa had earlier, in September, been declared unlawful by the same court.

However, the court on Tuesday said its judgment had no force until it was confirmed by the Constitutional Court.

It rejected Mkhwebane’s argument that its September judgment could be implemented in the meantime. Mkhwebane urgently applied to appeal Tuesday’s judgment, but from a practical point of view, as well as a legal one, she faces a number of obstacles. 

The Constitutional Court is scheduled to hear argument about whether her suspension by Ramaphosa was lawful on 24 November 2022.

While the Constitutional Court can take very long to deliver judgments, it can also move swiftly, at the very least to give an order, when it is in the interests of justice to do so.

Rabkin notes that even in a best-case scenario for Mkhwebane – if she succeeds at every step – there are a number of procedural hoops to jump through, and these take time.

Her application for leave to appeal must be argued in the High Court. A judgment must be delivered. A record of the High Court proceedings and, later, legal arguments must be filed to the SCA. The appeal court must hear argument. Then it must deliver judgment. Then there is a possible (likely) further appeal to the apex court.

The odds of this happening before 24 November are slim to none and such a quick turnaround has never happened before.

Full Sunday Times report