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Everything you need to know about Ramaphosa vs. Mkhwebane ahead of the court ruling

Aug 08 2019 08:17
Tehillah Niselow, Fin24

The Gauteng High Court in Pretoria will rule on Thursday whether President Cyril Ramaphosa can await the outcome of a judicial review of adverse findings by the public protector in a case concerning Minister Pravin Gordhan, before deciding how or whether to discipline him.  

After lengthy legal arguments from both sides last Thursday, Judge Letty Molopa-Sethosa reserved judgement for a week.

Here is what you need to know. 

What is the public protector report at the centre of this court battle about? 

Public Protector Busiswe Mkhwebane in May issued a report that found Gordhan erred in approving the early retirement with full benefits of former deputy commissioner of the SA Revenue Service Ivan Pillay in 2010. Gordhan was finance minister at the time. After early retirement was granted, SARS reappointed Pillay on a fixed-term contract. The revenue agency paid R1.2m in penalties for accessing pension early. 

Mkhwebane, in her report, instructed Ramaphosa to take "appropriate disciplinary action" against Gordhan. Gordhan has taken her report on review after saying that the public protector's findings were "totally wrong both in fact and in law". 

Why is the president involved if the report is about Gordhan? 

When Mkhwebane published her report, she instructed Ramaphosa to take action against Gordhan but did not provide a timeframe. The president's legal team has argued he complied with her directive by writing to her to say he would await the outcome of Gordhan’s review application. But the public protector maintains this is not an implementation of her order. 

What does the president want the court to do? 

Advocate Hamilton Maenetje, for Ramaphosa, asked the court to either rule that the president has complied with the remedial action ordered by Mkhwebane, or that the remedial action be put on hold pending the outcome of Gordhan's review application. 

Ramaphosa also said in court papers he can not not know what constitutes "appropriate" disciplinary action until the outcome of the judicial review. He noted there are several options available to him including, a reprimand, a fine or even sacking Gordhan from Cabinet. 

Why is Mkhwebane opposed to postponing disciplinary action against Gordhan?

Advocate Dali Mpofu, for Mkhwebane, gave a number of reasons for opposing the president's urgent application to halt disciplinary actions against Gordhan pending the outcome of the judicial review.

These included the argument that the review proceedings can last years, that Ramaphosa is allegedly is an "accomplice" to insults against the public protector by Gordhan, that the urgent should have been lodged by Gordhan and not Ramaphosa, and that  deferment will weaken the office of the public protector,.

Mpofu also warned of a "bloodbath on our democracy" if the president failed to implement or delayed implementing remedial actions. .

Wait… isn't the president also involved in another legal battle with the PP? 

Yes, the Bosasa case also came up in Mkhwebane’s court papers. Mkhwebane highlights in her affidavit that when Ramaphosa launched this application, he was already aware she had made adverse, preliminary findings and remedial action in relation to the Bosasa matter. 

The public protector in July found Ramaphosa was in breach of the Executive Ethics Code and should have declared the R500 000 donation from controversial Bosasa CEO Gavin Watson towards his ANC 2017 presidential campaign.

Ramaphosa is taking the report on review and, in his preliminary court papers filed last week, said her findings were "utterly irrational" and not based on law. 

And isn’t Gordhan also fighting it out with the PP in another matter. 

Mkhwebane and Gordhan are also in the middle of a legal tussle over a separate report. The Gauteng High Court in Pretoria on July 29 granted Gordhan’s appeal to suspend remedial action related to the SARS 'rogue unit' report. 

Mkhwebane in July found that the establishment of the unit in 2007 - while Gordhan was the tax agency's commissioner - was illegal. In her remedial action she ordered that President Cyril Ramaphosa should discipline Gordhan within 30 days of her report. Mkhwebane also directed the police and National Prosecuting Authority to consider criminal charges against him. 

Mkhwebane plans to appeal the ruling, saying Judge Sulet Potterill "overreached". 

Why is the EFF part of these court proceedings? 

The EFF supported Mkhwebane in court, as they did in Gordhan’s application to suspend remedial action against him related to the so-called 'rogue unit' report. 

Arguing on behalf of the EFF, Advocate Vincent Maleka said Ramaphosa has a duty to promote the unity of the state, but was favouring the executive in taking Gordhan’s side over the public protector.

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