Judgment reserved as Ramaphosa, Mkhwebane duel over public protector's powers | Fin24
 
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Judgment reserved as Ramaphosa, Mkhwebane duel over public protector's powers

Aug 01 2019 22:32
Tehillah Niselow

It was a full day of legal arguments in the North Gauteng High Court in Pretoria on Thursday, where lawyers for President Cyril Ramaphosa and Public Protector Busiswe Mkhwebane squared off over the disciplinary action she instructed the president take against Public Enterprises Minister Pravin Gordhan.

After eight hours of arguments with few breaks Judge Letty Molopa-Sethosa reserved judgement, saying she hopes to hand down her ruling on Thursday, August 8.

The matter relates to the report issued by the Public Protector in late May 2019, which found that 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. 

This is a separate matter to Ramaphosa’s application to review Mkhwebane’s report into Bosasa's R500 000 donation to his campaign for ANC president. 

Mkhwebane, in her report, instructed Ramaphosa to take "appropriate disciplinary action" against Gordhan, but did not provide a timeframe. Gordhan has taken her report on review after saying in May that the public protector's findings were "totally wrong both in fact and in law".

The application brought by Ramaphosa on Thursday was for the court to either rule that Ramaphosa 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. 

Awaiting finalisation

Advocate Hamilton Maenetje, for Ramaphosa, argued there was an "absolute justification" for the president to await the finalisation of Gordhan’s review process.

He noted that on Monday the Gauteng High Court in Pretoria ruled that Mkhwebane's remedial action against Gordhan in the so-called SARS 'rogue unit' report be suspended, pending the outcome of the minister's review application in that case. 

Maenetje told the court that the findings of the public protector are not "unassailable" and the argument that her remedial action must be instituted whether right or wrong cannot be correct. 

The  Constitutional Court in July ordered the public protector to personally pay 15% of the legal costs the SA Reserve Bank incurred to overturn Mkhwebane's Absa/Bankorp report. 

The president’s legal team warned the state attorney could consider a “special costs” order against her if she continues to oppose the suspension of the remedial action against Gordhan while he seeks a review.

Arguing for Gordhan, Advocate Michelle Le Roux said its “impossible at the moment” for Ramaphosa to decide on rational disciplinary action against the minister as he does not know what the outcome of the review will be.

She also stated that the Public Protector Act only allows for complaints older than two years to be investigated if there are special circumstances. The Pillay retirement took place in 2010. She said that Gordhan, before signing off on Pillay's request, had received legal advice from six experts. 

'Bloodbath on our democracy'

During Advocate Dali Mpofu’ s lengthy arguments for Mkhwebane, EFF leader Julius Malema walked into court and took his seat in the public gallery. Mpofu started by saying it had “become fashionable” to insult the public protector and accuse her of being involved in state capture.

He questioned how Ramaphosa's legal team could ask the court to declare that Ramaphosa had complied with Mkhwebane's remedial action, when Ramaphosa had postponed implementing the action pending the outcome of Gordhan's review application. 

"Your ladyship cannot declare that which is not there," he said. 

Mpofu also argued that it was wrong in law for Ramaphosa to bring the application to stay the remedial action, while Gordhan had taken the report of review, saying such an application had "never been seen in the world".

If the order were granted "nothing will stop the bloodbath on our democracy," he claimed, adding we "might as well close up the whole country".  Mpofu argued that the office of the public protector would be "killed and blunted" if her remedial action were paused, and questioned why "everything that we stand for in this democracy must be undermined for the convenience of Mr Gordhan". 

He also accused the president of being an "accomplice" to Gordhan in insulting the office of the public protector. .

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 against the public protector.

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