Mboweni seeks court order to set aside Public Protector remedial action against Mogajane

2019-03-01 15:27 - Lameez Omarjee
Public Protector Busisiwe Mkhwebane. (Netwerk24)

Finance Minister Tito Mboweni has filed a court application to set aside Public Protector Busiswe Mkhwebane's remedial action against Treasury's Director General Dondo Mogajane.

According to a statement from National Treasury, Mboweni filed the application at the North Gauteng High Court and wants the court to declare the public protector's findings and remedial action to bee "irrational, alternatively unreasonable" and set it aside.

Last year, Mkhwebane released a report following an investigation into Mogajane's application for the top position at Treasury in 2017. She found that he failed to disclose a criminal record - a speeding fine which he incurred in 2011, Fin24 reported.

She recommended that President Cyril Ramaphosa take appropriate action against Mogajane in terms of the Public Service Act. According to the act, the president is responsible for disciplinary steps and the implementation of relevant sanctions against a head of department. The president had initiated the remedial action.

At a briefing ahead of the National Budget, Mboweni told journalists he had taken the matter on review. 

According to Treasury's statement, Mboweni is challenging Mkhwebane on her findings on the grounds that they are "arbitrary and irrational".

In her report, Mkhwebane concluded that Mogajane was "dishonest" for failing to disclose his "criminal conviction" in his application for the post.

"There is no rational connection between the findings and remedial action and the evidence before her at the time," the statement read.

Mboweni believes that the public protector considered "irrelevant facts" in the matter and provides no rational basis on which she arrived at the findings.

The minister also challenged the remedial action on the basis that it "infringes the doctrine of separation of powers". The remedial action requires the public protector to first approve a plan of implementation from the president.

"The remedial action amounts to an unconstitutional breach of the separation of powers that it effectively usurps the president's executive constitutional powers to appoint and discipline directors-general and arrogates this power to the public protector," the statement read.

Mboweni has publicly expressed full confidence in Mogajane. Although Mboweni recognises the public protector's office as a constitutionally mandated institution, he has said he had a problem with the incumbent – Mkhwebane.

The public protector's office has issued a statement in response to Mboweni's comments, in which Mkhwebane said Mboweni was trivialising a serious matter. Her office also indicated she will write to the president and Parliament Speaker Baleka Mbete to report ministers interfering with her work.

Mkhwebane on Thursday held a briefing in which she "named and shamed" government officials and organs of state which have not implemented her remedial actions.

"Remedial action is not optional, unless set aside by the court," she said.