Before handing down judgment, judge Nathan Erasmus said the court was aware of developments that had happened “last night or late afternoon”, but said the judgment was based on the facts before the court at the time the case was heard and up until an amendment was made to the notice of motion after the hearing.
On Mkhwebane’s bid to prevent her suspension, the court held that Mkhwebane would continue to receive her salary and benefits and would still be able to review the decision if the president decided to suspend her. The balance of convenience did not favour Mkhwebane: “The longer advocate Mkhwebane occupies the office of the applicant while facing serious charges, the more public faith in this office is eroded.”
The court said it had been asked to consider an application that sought “to prevent organs of state from exercising powers specifically assigned to them by the constitution”.
Courts could only “tread deep into the heartland” of the executive and the legislature in very clear cases. This case was “by no means” one of these.
The court ordered Mkhwebane to pay a portion of the legal costs in her personal capacity.
