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Mkhwebane stands by Gordhan report, court hears

Jul 23 2019 18:34
Sibongile Khumalo
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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The High Court in Pretoria has reserved judgement in an urgent application by Minister of Public Enterprises Pravin Gordhan seeking to suspend Busisiwe Mkhwebane's binding remedial orders and interdict her office from enforcing them.

After a day of hearing arguments from both parties, including the Economic Freedom Fighters (EFF), who had joined the case out of public interest in opposition of the application, Judge Sulet Potterrill reserved judgment on the matter.

She is expected to come back with a ruling next week.

In a report released on July 5, Mkhwebane found that Gordhan had violated the Constitution and the Executives Ethics Code, in a report that related, among other things, to the establishment of the SA Revenue Service 'rogue unit' in 2007. 

'Assault to her office'

Mkhwebane described the unit tasked with investigating illicit economy activity as unlawful, with illegal spying capabilities. 

Advocate Thabani Masuku said that the Public Protector stands by her report, arguing that the implications of interdicting the remedial action would have serious implication on the status of the office.

"She stands by her report, and she stands by her findings," said Masuku.

He further submitted that the application for the interdict was an "assault to the office of the Public Protector".

"This application does not strengthen the office of the Public Protector. It weakens it." 

Mkhwebane's report also ordered that the SA Police Service (SAPS) commissioner should investigate, within 60 days, the conduct of Gordhan, former SARS deputy commissioner Ivan Pillay and other officials involved in the unit for violating the Constitution and the National Strategic Intelligence Act.

It also gave the Speaker of Parliament a deadline to refer the findings against Gordhan to the Joint Committee on Ethics and Members’ Interests within 14 working days of receiving the report.

The deadline expires on July 25.

No special circumstances

Addressing the court on behalf of Gordhan, Advocate Wim Trengove argued that Mkhwebane overstepped her legal jurisdiction in pursuit of the "rogue unit" case, as the Public Protector Act stipulates that the office may investigate matter within two years of occurrence, unless there are compelling special circumstances.

He said Mkhwebane failed to identify any special circumstances after she was asked to do so by the Gordhan's legal representatives.

"No one has done more harm to the office than the incumbent. She has done more harm to the office than anybody else," said Trengove.

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