Mkhwebane abandons attempt to appeal Gordhan interdict
The public protector would need to approach the high court now to be granted leave to appeal.
Public Protector Busisiwe Mkhwebane. Picture: Neil McCartney
News24 reports that Public Protector Busisiwe Mkhwebane has given up on asking the Constitutional Court to let her appeal the Pravin Gordhan/Sars judgment against her delivered last month by Judge Sulet Potterill in the high court.
She and her office reportedly filed papers in retreat yesterday morning.
To approach the Constitutional Court directly, bypassing the Supreme Court of Appeal, is legally unusual.
Last month, Potterill granted an interdict to Minister of Public Enterprises Pravin Gordhan to stop Mkhwebane from enforcing the remedial action stipulated in her report, which he said if allowed to go ahead would cause him “irreparable harm”.
That matter remains before the courts.
Potterill found that Gordhan’s legal team was correct in arguing that the harm to him would be irreparable if the interdict was not granted.
Suspending an order of the public protector would not weaken her office, Potterill further found. She slammed Mkhwebane’s remedial action as “vague, contradictory and/or nonsensical” and slapped her and the EFF, which was supporting her in court, with cost orders.
She added that President Cyril Ramaphosa could also not be criticised for waiting for the court’s decision before implementing the remedial action stipulated by Mkhwebane. Ramaphosa later won another related court matter that backed up this view.
Potterill questioned why Mkhwebane had made the decision to look into complaints dating back more than two years, something she was not required to do.
She added that Gordhan had established a prima facie right for the interdict to be granted by bringing up the fact that the complaints were on issues dating back to 2007 and 2010, and that Mkhwebane had not disclosed the “special circumstances” leading to her dealing with complaints over issues dating back so far.
The public protector’s remedial action called for Ramaphosa to take action against Gordhan, whom she found to have breached rules while he was heading up Sars.
Mkhwebane found that Gordhan unlawfully established a high-risk unit aimed at clamping down on various syndicates who were infiltrating the revenue service. She also said Gordhan had broken the rules in a matter in which a senior staffer was reinstated after being awarded early retirement.
As for Gordhan’s stating in his affidavit that Mkhwebane’s “rogue unit” findings were flawed, Potterill said that Gordhan had explained the necessity of establishing a unit to focus on illicit trade, and that this was established lawfully.
Mkhwebane’s investigation against the minister was prompted by a complaint from the EFF. Gordhan said the party was targeting him because it opposed efforts to root out corruption.
The EFF also said last month they would appeal by approaching the Constitutional Court to reverse the granting of the interdict. However, it’s not known if anything came of this.
The EFF accused the judge of racial bias.
(Compiled by Charles Cilliers)
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