DA, Ramaphosa pop champagne as Mkhwebane loses court duel

The Constitutional Court on Thursday ruled in favour of the DA and President Cyril Ramaphosa, upholding the parties’ appeal against the Western Cape High Court judgment in September 2022 that the president suspended public protector Busisiwe Mkhwebane unlawfully. 

Both the DA and Ramaphosa were successful in a consolidated application for direct appeal to the apex court to test the constitutional invalidity of the high court’s decision.

The nine judges of the Constitutional Court – Deputy Chief Justice Mandisa Maya, acting judge Selby Baqwa, judge Mbuyiseli Madlanga, judge Steven Majiedt, judge Rammaka Mathopo, acting judge Thokozile Mbatha, judge Nonkosi Mhlantla, judge Owen Rogers, and judge Zukisa Tshiqi – reversed the high court ruling declaring that Ramaphosa’s decision to bench Busisiwe Mkhwebane was invalid and that it ought to be set aside.

Busisiwe Mkhwebane also lost the conditional application for confirmation of the said orders of invalidity.

“The conditional application for confirmation of the said orders of invalidity is dismissed,” said Maya, who penned the judgment and also read it on behalf of the court.

In addition to the cross-appeal, Busisiwe Mkhwebane wanted the Constitutional Court to confirm the full court’s orders in her favour if the judges agreed with the DA and Ramaphosa that an order of constitutional invalidity had no force unless it was confirmed by the apex court.

The court dismissed the DA and Ramaphosa’s appeals against the costs order that the high court had initially granted against the two parties, respectively.

The judges also dismissed Busisiwe Mkhwebane’s conditional cross-appeal against appeals by the DA and Ramaphosa against the high court costs order that each party pay its costs.

In the third of the consolidated applications, Busisiwe Mkhwebane filed an urgent conditional application for leave to appeal directly to the apex court, that she be allowed to return to office while the appeal proceedings were pending.

In this leg, the court found that she should be liable to pay the costs in her personal capacity including the costs of two counsels.

President Cyril Ramaphosa’s Office said on Thursday that he welcomes the judgment by the Constitutional Court affirming his adherence to due process and fairness in suspending Mkhwebane. 

“The suspension followed the decision by the National Assembly to institute Section 194 proceedings against Advocate Busisiwe Mkhwebane,” the brief statement read. 


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