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The Gauteng High Court in Pretoria landed another legal blow on the public protector when Judge Letty Molopa-Sethosa ruled on Thursday that President Cyril Ramaphosa had complied with her remedial action to discipline Minister Pravin Gordhan.
Judge Molopa-Sethosa further decided that disciplinary action by the president towards Gordhan should be suspended pending the outcome of the minister's application for judicial review of Public Protector Busiswe Mkhwebane's report.
"It is mind-boggling that she [Mkhwebane] has not consented to the stay of remedial action," Judge Molopa-Sethosa said.
The ruling relates to a report released on May 24 by Mkhwebane which found Gordhan had erred as finance minister in 2010 by allowing then deputy commissioner of the SA Revenue Services (SARS) Ivan Pillay to retire early and access his pension while staying on at the tax agency after this. Gordhan said he would appeal her findings and claimed they were factually and legally incorrect.
Ramaphosa was instructed to discipline Gordhan but the deadline and method were not specified. He was told to furnish her with an implementation plan within 30 days. He wrote to Mkhwebane saying he noted her findings and intended to comply with them, 30 days after the outcome of Gordhan's review application.
Mkhwebane rejected this, demanding that the disciplinary action be taken before Gordhan's review and the matter headed to the high court where the president asked the court to declare he complied with the public protector's remedial action through his correspondence with her office and staying the disciplinary action, pending the judicial review outcome.
Different to Nkandla
The judge found that Ramaphosa always planned to implement the remedial action instructed by the public protector and this was a different case to former president Jacob Zuma who ran a "parallel process" in Parliament over the then public protector's instructions on the Nkandla report.
Advocate Dali Mpofu for Mkhwebane argued last week that Ramaphosa was worse than Zuma for ignoring the public protector's remedial action, which is binding, unless challenged by judicial review.
Judge Molopa-Sethosa said the public protector was "inconsistent" and she consented to suspensions of remedial action, pending judicial review in two separate occasions in recent weeks.
She also dismissed Mkhwebane's assertions that Gordhan should have brought the urgent application, not Ramaphosa and said the matter affects the president as he was instructed to discipline the minister.
Judge Molopa-Sethosa who read out the entire background to the case also rejected the argument by the public protector that Ramaphosa is trying to shield his friend, Gordhan and said this "clouds issues".
The high court awarded legal costs as well as the fees of two counsel to Ramaphosa to be paid by the public protector and the EFF who also joined the application to demand the president discipline Gordhan.
Certainty
Both the president and Gordhan welcomed Thursday's ruling by the high court. In a brief comment by presidential spokesperson Khusela Diko, she said the judgement gave "certainty" on the way forward.
Gordhan's spokesperson Adrian Lackay said the ruling should be of alarm to the public, given the constitutional role the public protector's office plays.
"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 'mindboggling' 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," Lackay commented.
'Sickening idea'
The public protector was not in court in Thursday, but the head of her legal office Alfred Mhlongo said they take note of the outcome and they will study the judgement further and consider their options.
"The decision whether or not we are going to oppose these types of urgent applications is not a decision we take lightly, we consider each one on a case by case basis, it is not at random," Mhlongo added.
The EFF was less reserved than the public protector's and party spokesperson Mbuyiseni Ndlozi slammed judge Molopa-Sethosa for a "poor" ruling.
"We are now in a situation where the powers of the public protector can be suspended like that but also it is this sickening idea that Pravin Gordhan is above the law, it is this sickening idea from here on that people, if they are uncomfortable with the remedial action of the public protector, they can just go and do an application for review," Ndlozi said.
He added that Thursday's judgement will form part of their appeal to the Constitutional Court against Judge Sulet Potterill's decision to suspend remedial action against Gordhan in the report on the SARS 'rouge unit'.
Thursday's high court ruling against the public protector comes against the backdrop of several ruling against her office in recent weeks.
Confusion
Political analyst and constitutional expert Professor Shadrack Gutto cautioned against the narrative that Mkhwebane has lost the public's trust.
"If we use this public protector to destroy the office, we are destroying the basis of this democracy," Gutto told Fin24.
However, political analyst and chartered accountant Khaya Sithole said Thursday's ruling leaves the subjects of Mkhwebane's reports confused about implementing remedial action pending a judicial review and it would be ideal for the public protector to take a position on whether she intends to force such affected parties to act even when the underlying report has been challenged.
