AS IT HAPPENED: Mkhwebane takes another hit as Ramaphosa wins court bid | Fin24
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AS IT HAPPENED: Mkhwebane takes another hit as Ramaphosa wins court bid

2019-08-08 09:47

The Gauteng High Court in Pretoria ruled that the president has complied with the remedial action of the public protector's report in the matter of Ivan Pillay's pension pay out.

President Cyril Ramaphosa

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Last Updated at 18:39
08 Aug 16:18

WATCH: 'We are considering our options', says Mkhwebane's legal rep

08 Aug 15:55

Political analyst and constitutional expert Professor Shadrack Gutto says he does not think the high court ruling was damning.

He said Ramaphosa won on a technicality that no timelines were given by the public protector for the remedial action.

“It is a very narrow so-called victory, it was almost a pyrrhic victory,” Gutto told Fin24.

He warned that the office of the public protector should still be respected, despite Mkhwebane’s several losses in court, in recent weeks.

“If we this this public protector to destroy this office, we are destroying the basis of our democracy,” Gutto commented.

08 Aug 15:39

08 Aug 15:38

08 Aug 15:30

Minister Gordhan welcomes today’s high court judgment granting the application by President Cyril Ramaphosa. 

The court’s recognition that the President has complied with the remedial action and that any further steps will await the final determination of Minister Gordhan’s pending review ensures that all parties’ rights are protected until our courts have the final word.

The court’s rejection of the arguments made by the Public Protector and the EFF, and, in particular, the court’s conclusion that it was 'mind-boggling' for the Public Protector to oppose this application (where her usual attitude in other cases is not to oppose such relief), ought to concern South Africans given the important constitutional role and mandate of the Office of the Public Protector.

08 Aug 15:05

08 Aug 14:03

08 Aug 12:55

Ndlozi says that the EFF is taking a previous ruling by Judge Sulet Potterill to the Constitutional Court, and once the apex court has ruled, Thursday's ruling by Judge Molopa-Sethosa will "fall apart". 

He says Thursday's judgment was poorly argued. 

08 Aug 12:50

Mbuyiseni Ndlozi, spokesperson for the EFF, says Pravin Gordhan is treated as being above the law. 

He says the EFF is worried that the public protector's office is being stripped of its 'bite'. He says it is too easy for remedial actions ordered by the public protector to be suspended. 

08 Aug 12:46

Alfred Mhlanga, head of legal at the office of the PP, speaking to media after the ruling was handed down, says the office of the public protector will consider the judgment and give it a close reading. 

He says the PP's office will then formulate a way forward. He says the public protector does not take decisions to oppose applications for the stay of remedial action lightly.

08 Aug 12:16

Molopa-Sethosa now delivers her order

* She declares that the President has complied with the remedial action of the Public Protector arising out of the investigation and report into the approval of former SARS deputy commissioners Ivan Pillay.  

* The Public Protector and the EFF will pay costs. 

This means that President Cyril Ramaphosa does not have to take any action against Gordhan until the outcome of his review of the Ivan Pillay pension matter has been argued in court. 

That court case has not yet commenced. 

08 Aug 12:09

The judge again notes it was "not understandable" why the PPP was opposing a stay of Gordhan's review application. 

She states the EFF was being "unreasonable" to demand the president take disciplinary action immediately. 

She states she does do not see that justice would be served if the successful parties were not to be granted an order for costs. 

08 Aug 12:06

The judge has returned and continues to speak about costs. 

08 Aug 12:00
EFF spokesperson Mbuyiseni Ndlozi tweets from court that the judge does not inspire confidence. 

08 Aug 11:53
The court is taking a brief adjournment. 

08 Aug 11:46

The judge is now considering the question of costs. 

08 Aug 11:37

The judge rules that Ramaphosa has complied with the public protector's remedial action plan. 

She notes that her original order did not include a timeframe for him to act. 

This means that Ramaphosa can await the outcome of Gordhan's review of the public protector's report before deciding what action to take against him. 

She further notes that, even if she had not found that Ramaphosa had complied with Mkhwebane's remedial actions, she would have ruled that the remedial action be halted pending the upcoming court hearing. 

08 Aug 11:35

The judge notes she is not expressing her view on the merits of the review application, saying she will leave this to the court dealing with the application. 

She adds: "why subject [Gordhan] now to disciplinary action when there is a review application pending?"

She again notes that Ramaphosa's plan of action is reasonable and rational. 

08 Aug 11:31

She notes that one of the arguments made by the leag teams of the public protector and the EFF is that Gordhan should have brought the application, not Ramaphosa. 

The judge notes that it is the president who has to take the remedial action and as such has a right to approach the court. 

08 Aug 11:29

The judge returns to the public protector's report and notes that the president was left with the discretion to take action against Gordhan. 

She notes the president has said he will defer the implementation of the remedial action pending the outcome of Gordhan's review. 

"In my view, this is a reasonable and rational decision which he has taken," she says. 

08 Aug 11:27

The judge now notes that Mkhwebane argued that she has been insulted by Gordhan, and that the president has, by association, insulted her by not repudiating Gordhan's insults. 

08 Aug 11:24

08 Aug 11:21

08 Aug 11:19

She notes that, in a recent similar case, Judge Sulet Potterill ruled that Mkhwebane's remedial orders against Gordhan be suspended in a separate matter. 

She says it is "mind-boggling" why the public protector did not agree to having the remedial action stayed pending the outcome of Gordhan's review application. 

08 Aug 11:14
The judge notes that in previous instances the public protector has not opposed staying remedial action if a review application has been launched. 

08 Aug 11:12

08 Aug 11:05

The judge notes that it is the view of the public protector that the president has not complied with the remedial action she ordered, and that her work would be undermined if the order is granted. 

08 Aug 11:02
The judge notes Ramaphosa is asking the court to either rule that he has complied with the remedial action ordered by the public protector, or that the remedial action be put on hold pending the outcome of Minister Gordhan's review application. 

08 Aug 10:56
Judge Molopa-Sethosa is still giving background to the case,  referencing correspondence between the president and Makhwebane. 

08 Aug 10:52

08 Aug 10:48

The judge notes that Gordhan launched a review application of Mkhwebane's findings just days after she published her report. 

She then reads the letter that Ramaphosa wrote to the public protector in the wake of Gordhan's application. 

08 Aug 10:43

08 Aug 10:39

She is starting by sketching out the background of the application, noting that Ramaphosa's application is being opposed by the PP and the EFF. 

She says all sides agree that the matter is urgent. 

08 Aug 10:38
Judge Letty Molopa-Sethosa has started handing down her ruling. 

08 Aug 10:33
The judge has just walked in. 

08 Aug 10:33

After the Constitutional Couty upheld the personal cost order against her, an organisation called Democracy in Action started raising funds to help her pick up the hefty tab.

It is also making use of crowdfunding platform Thundafund to spread its message.

In its statement on Thundafund, the organisation says the ConCourt's ruling is "unfortunate" and sets the wrong precedent for Mkhwebane, other Chapter 9 institutions and Mkhwebane's successors.

"This (the ruling) means that they will not be able to do their job without fear anymore."

Responding to queries about the crowdfunding effort to help the Public Protector, her spokesperosn Oupa Segalwe told Fin24 that the organisation had acted on its "own initiative".

Mkhwebane is seeking advice from her legal team "on the propriety" of accepting the donation from Democracy in Action, he added.

08 Aug 10:30

The Constitutional Court, meanwhile, in July upheld a personal cost order against Mkhwebane, saying she had put forward a "number of falsehoods". 

The court agreed with the North Gauteng High Court that her entire Absa/Bankorp investigation was flawed, and that she was not honest during her investigation. 

While it’s not clear how much money she will have to pay, legal experts say it is likely to run into hundreds and thousands of rands.

08 Aug 10:26

The court is still waiting for the judge to arrive. 

The public protector has been involved in a number of recent court actions related to her findings. While she has come under scrutiny for repeatedly investigating Public Enterprise Minister Pravin Gordhan, Mkhwebane has said she acts without fear or favour. 

Earlier in August Fin24's Ferial Haffajee wrote about her latest investigation, into whether whether or not SARS commissioner Edward Kieswetter has the requisite qualifications for his role. 


08 Aug 10:12

The ruling has not yet commenced. 

EFF spokesperson Mbuyiseni Ndlozi is in court to hear what Judge Letty Molopa-Sethosa has to say.

The EFF last week joined the public protector in arguing against Ramaphosa's application. 

08 Aug 10:00
Judge Letty Molopa-Sethosa is expected to start delivering her ruling at 10:00 on Thursday. 

08 Aug 09:48
Arguments were heard last week. 

08 Aug 09:48
Ramaphosa brought the urgent application last week Thursday, asking the court to either rule that he has complied with the remedial action ordered by Public Protector Busisiwe Mkhwebane, or that the remedial action be put on hold pending the outcome of Gordhan's review application. 

08 Aug 09:48

The Gauteng High Court in Pretoria will on Thursday rule on the urgent application brought by President Cyril Ramaphosa against the public protector in the matter relating to Public Enterprises Minister Pravin Gordhan and former deputy tax boss Ivan Pillay.

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