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Although Public Protector Busisiwe Mkhwebane withdrew her application to the Constitutional Court to appeal the judgment against her by Judge Sulet Potterill regarding remedial action against Public Enterprises Minister Pravin Gordhan, President Cyril Ramaphosa has called on the court to hear it anyway.
Mkhwebane withdrew her application at the end of August. Potterill had labelled her orders "vague, contradictory and/or nonsensical".
In an opposing affidavit filed to the apex court on Tuesday, Ramaphosa said that while he believed the Public Protector's appeal had had no reasonable prospects of success and fell outside of the Constitutional Court's jurisdiction, he also believed the issue at hand raised important Constitutional questions that were in the country's interest.
It should not be up to an individual to decide on the matter, he argued. "The attitude of the Public Protector should not affect the outcome of this application for leave to appeal," Ramaphosa said.
While the Economic Freedom Fighters (EFF) also applied for leave to appeal the ruling, they have not withdrawn. Ramaphosa asked the court to consider their application "for reasons that do not usually arise" in applications to ConCourt.
He argued that ongoing litigation and "heated public debate" were potentially damaging to both the High Court and the dignity of the Mkhwebane's office. Ramaphosa referred to attacks on the presidency, Gordhan, Judge Potterill and the Public Protector herself who, he said, had all been attacked in an unjustifiable manner.
In SA's interest
"It is in the national interest for this court now to pronounce finally on the issues raised in the proposed appeal," Ramaphosa said.
Gordhan also filed an answering affidavit on Tuesday. However, he opted for a different approach, arguing that the EFF's application should be dismissed because there is, among other things, no urgency involved.
For his part, he said the EFF's arguments were incorrect and had already been dismissed by the High Court, adding that the purpose of interim orders is to protect the rights of a complaining party pending an application to finally establish rights.
"It ensures that my rights to review the report are temporarily preserved until the final determination of the review application and that temporary preservation of the status quo does not undermine the Office of the Public Protector," Gordhan stated.
Serious findings
"The Public Protector made serious findings of misconduct in the report. Those findings must be taken seriously until they are set aside by the review. The president could not ignore those findings in the absence of an interdict and, were he to act on them, I would suffer irreparable harm."
In Gordhan's view, the EFF's application against the interim relief, pending the final outcome of the review, undermines the judicial review process and access to justice.
"All that the High Court order does is to ensure that...my rights are protected in circumstances where the irreparable harm done to them by premature implementation of the remedial action would be severe," said Gordhan.
The High Court found that the interim interdict did not interfere with the duties and functions of the Public Protector.
Gordhan said he was concerned by what he deemed the "inconsistency" of the Public Protector in that she has in several other matters routinely not opposed the suspension of remedial action imposed her reports.
Gordhan also regards the EFF's approach as "selective", arguing that the party "only seeks to intervene in pending litigation brought by or against" him.
