Mkhwebane faces another court defeat – expert

The backing of the Economic Freedom Fighters (EFF) may fall short of saving Public Protector Busisiwe Mkhwebane from yet another court defeat, a legal expert has warned.

Yesterday the High Court in Pretoria heard arguments in Public Enterprises Minister Pravin Gordhan’s application to interdict the prescribed remedial action by the beleaguered corruption watchdog, which would see President Cyril Ramaphosa initiating disciplinary action against Gordhan in a politically controversial move.

Mkhwebane was opposing the bid while Ramaphosa joined the interdict application.

Advocate for the EFF Tembeka Ngcukaitobi castigated what he described as a bid to block Mkhwebane’s constitutional powers, warning that allowing a court to block the powers of Mkhwebane’s office would have the effect of prejudicing less fortunate complainants to her office by delaying the service of justice.

The Helen Suzman Foundation’s Anton van Dalton said yesterday it would be counter-productive to effectively put the horse before the cart by allowing remedial action to be enacted when such remedial action was subject to judicial review.

The interdict bid precedes a review application brought by Ramaphosa in which he argues that Mkhwebane’s remedial action may be unlawful.

Ngcukaitobi cited cases involving the previous public protector, Thuli Madonsela, for which courts had to clarify the definition of her powers as constitutional powers.

He argued this interdicting against the exercising of constitutional powers should be dealt with far more exhaustively.

But Van Dalton said such powers may be found to be unlawful.

“If you exercise those powers unlawfully, then there is obviously a right to go and ask the court for an interdict. It’s very clear that if any executive power or constitutional power is enacted unlawfully, there is a right for people to go to court and stop them from constitutionally unlawful activity,” said Van Dalton.

Mkhwebane’s lawyer, Advocate Thabani Masuku, argued that no harm would be done by Ramaphosa following the remedial action before its lawfulness was tested.

Van Dalton vehemently disagreed.

“Let’s say, hypothetically, there is a case where remedial action demands for instance that a president fire a Cabinet minister … then six months down the line a court finds that remedial action was unlawful. What must happen to the successor? Will they have to be fired and the other one reinstated? I think the logic used by [Mkhwebane’s lawyer] is a bit topsy-turvey.”

Van Dalton was also critical of Mkhwebane’s reference to a “rogue unit” at the South African Revenue Service, in which Gordhan was implicated.

“I am very hesitant to comment on that one but for a long time there have been false reports … newspaper reports that the Sunday Times had to apologise for and KPMG had to retract their report on this unit. So that makes me very suspicious,” he said.

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