By Neelam Rahim

Despite a full bench of the Cape Town High Court setting aside the suspension of Public Protector Busisiwe Mkhwebane, she cannot as yet return to the office. In a damning judgment on Friday, the High Court slammed President Cyril Ramaphosa’s decision to suspend Mkhwebane a day after she sent him 31 probing questions about the theft of millions of dollars from his home on his Phala Phala game farm in Limpopo and the apparent subsequent cover-up by presidential security personnel. The DA has immediately filed an appeal.

Speaking to Radio Islam International Research and Advocacy officer at Judges Matter, Mbekezili Benjamin said one of the issues the public protector raised includes the court ordering according to section 194 inquiry to stop immediately.

According to Benjamin, the court declined the stopping the section 194 inquiry. It stated that it must continue because the issues the committee are investigating are not related to the problems before the court.

He said section 172 of the constitution regulates the high court’s powers. This states that when the president’s conduct is not in line with the constitution, the high court may step that conduct aside. It may declare it invalid.

In this situation, the high court has said that the president’s decision to suspend advocate Busisiwe Mkhwebane was unlawful and invalid. However, the constitutional court must still confirm that decision before Advocate Mkhwebane returns to work.

In the present situation, until the constitutional court has its say, the position as it was before the high court judgement remains means that advocate Mkhwebane is still on suspension and may not go back to work at the public protector’s office.

The DA has stated that it will appeal the high court ruling. Benjamin said the appeal would go straight to the constitutional court as it involves the president’s conduct.

The default position is that the president has to suspend the public protector in section 194. However, there are situations where the president might not be able to exercise power. Benjamin said in a situation as such, he may delegate authority to suspend to the deputy president or cabinet minister that other cabinet ministers designate.

Listen to the interview on Radio Islam’s podcast below.