Gordhan successfully interdicts Mkhwebane’s remedial action

Judge Sulet Potterill has granted Minister of Public Enterprises Pravin Gordhan’s application for an interdict to stop Public Protector Busisiwe Mkhwebane from enforcing the remedial action stipulated in a recent report, which he said if allowed to go ahead would cause him “irreparable harm”.

However, it does not mean he’s entirely off the hook, as the 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 added that President Cyril Ramaphosa could not be criticised for waiting for the court’s decision before implementing the remedial action stipulated by Mkhwebane.

Potterill noted that the court would not rule on whether or not Mkhwebane has been competent or biased.

According to the judge, there is no need for urgency in the remedial action as the matter in question took place over a decade ago.

The judgment began with Potterill reading out Mkhebane’s remedial action.

She then read Ramaphosa’s affidavit, in which he argued that he cannot exercise disciplinary action against Gordhan while the matter is still before the courts.

This was followed by her reading Mkhwebane’s response, which accused Ramaphosa of failing to uphold the constitution by delaying the remedial action.

READ MORE: Gordhan insulted Mkhwebane, called her ‘legally illiterate’, her lawyer complains

Potterill said that it was not unusual for the public protector’s remedial action to be suspended pending a review application.

She continued that even Mkhwebane herself had conceded that it was unusual for her office to oppose review applications.

Potterill questioned why Mkhwebane had made the decision to look into complaints dating back more than two years, something she is 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 are 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.

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.

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 the South African Revenue Service.

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.

(Compiled by Daniel Friedman. Additional reporting, ANA)

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