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7 key factors in Mkhwebane's ConCourt appeal against Gordhan ruling

Aug 22 2019 05:00
Public Protector Adv. Busisiwe Mkhwebane during th

Public Protector Adv. Busisiwe Mkhwebane during the release of her report Nelson Mandela's funeral funds inquiry on December 04, 2017 in Pretoria. (Phill Magakoe/ The Times/Gallo Images/Getty Images)

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Public Protector Busisiwe Mkhwebane wants the Constitutional Court to overturn the High Court judgment which suspended the implementation of remedial action she recommended against Public Enterprises Minister Pravin Gordhan.

Mkhwebane's report in July found that Gordhan violated the Executive Ethics Code, in an investigation that related, among other things, to the establishment of the SA Revenue Service's so-called 'rogue unit' in 2007. The High Court in Pretoria granted Gordhan an interdict against the remedial action, which recommended that he face disciplinary steps. Judge Sulet Potterill handed down the decision. 

Gordhan’s legal team had argued that he would continue to "suffer baseless, but engineered reputational damage" if the remedial action was not suspended, pending a full review of the report. 

In a lengthy affidavit to the highest court in the land, Mkhwebane states that the High Court erred in granting the order, in a ruling which she says jeopardises the constitutional role of the Public Protector.

Below is a summary of some key elements in her argument:

1. No prima facie case regarding the ‘rogue unit’

According to the Public Protector, the High Court was wrong in how it dealt with the "establishment of the SARS Investigative Unit" and committed a serious error of fact and law in interpreting the issue around Ivan Pillay’s employment after his appointment as Deputy Commissioner at SARS in 2009. Mkhwebane particularly takes issue with his early pension payout in 2011. 

2. On not affording Gordhan opportunity to be heard

The court erred in finding that the Public Protector had a duty to afford Gordhan an opportunity to be heard before meting out the remedial action, Mkhwebane believes.

According to her, Gordhan’s argument, taken to its logical conclusion, would require an opportunity for a hearing during investigation, when the Public Protector reports on her finding and when she remedies maladministration.

3. On granting the suspension an interim interdict

It is obvious that biting remedial actions ordered by the Public Protector would probably be strongly resisted [by] well-resourced litigants in an attempt to repair or soften the inescapable reputational damage, Mkhwebane contends.

Some would resort to various retaliatory actions, which would constitute unlawful interference with the functioning of the Public Protector’s office, she adds.

According to her argument, a litigant like Gordhan, who is also a member of the executive, is constitutionally required to assist and protect the Public Protector.

4. On the court's interpretation of the Public Protector Act

According to Mkhwebane's legal argument, the court misconstrued the Public Protector Act and misapprehended its powers to review a statute which gives the Public Protector wide discretion. She says by Gordhan's own admission, the establishment of the investigation unit was secretive - or, at least, not a matter of public knowledge.

She further states that it carried out its "spying" functions for a considerable period of time after it was created and the equipment it purchased for such purposes are still not accounted for.

5. On Gordhan suffering irreparable harm

Mkhwebane says even in the event the review application is successful, there is no reasonable prospect that a court would ignore Gordhan's own admitted violation of the Executive Ethics Code. At most, the court may set aside the finding that he "wilfully" misled Parliament, but the remedial orders would still stand, she argues.

Whatever harm may befall Gordhan is the result of his own recklessness, she contends.

6. On Gordhan having no other satisfactory remedy

The court erred in accepting the president's argument that it was unclear whether he had the power to discipline an errant Minister, and that it was not possible to do so while Gordhan's review application was pending, Mkhwebane argues. The President has the right to deal with Gordhan on the basis of what he has already admitted to the Public Protector and in court, she says.

7. On Gordhan's rights vs. duty

The court abjectly failed to exercise its discretion to take cognisance of the possible consequences to Gordhan and the Public Protector, which will ensue if an interdict is granted. 

It is not Gordhan's rights in particular that maybe negatively affected, but those of the South African public that the government serves, she states. She argues that the court failed in its discretion to allow Gordhan to pursue an abusive application for the interim interdict - and that Gordhan turned his back on parliamentary processes and resorted to litigation over matters which are within the domain of Parliament.



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