Public Protector takes another costly punch

The Pretoria High Court has granted public enterprises minister Pravin Gordhan’s urgent interdict to suspend the remedial action ordered by the Public Protector (PP), pending the final review of the PP’s report.

In addition, the PP and the office of the PP are interdicted from enforcing the remedial orders pending the final review.

Public Protector Busisiwe Mkhwebane and the Economic Freedom Fighters (EFF) are ordered to pay, jointly and severally, the costs of Gordhan and fellow respondents former South African Revenue Service (Sars) deputy commissioner Ivan Pillay, and former Sars commissioner Oupa Magashula. Mkhwebane is thus personally responsible for one third of these costs.

The PP and the EFF argued that this matter was not urgent.

The court however found that this matter was “inherently urgent”. It held that there would be no harm to the PP in awaiting the outcome of the review decision, but that there would be harm to Gordhan if the interdict was not granted.

The court considered whether the granting of an interim interdict would fail to promote the “objects, spirit and purport of the constitution”. It noted that an interlocutory interdict is “designed to protect the rights of the complaining party pending the application to establish the rights of the parties”. The objective is that the ultimately successful party should receive adequate and effective relief.

The court agreed with Gordhan that the PP would not normally oppose a request to suspend the PP’s remedial action pending a review.

The court referred to President Cyril Ramaphosa’s letter to the PP, in which it is stated that:

• It will be inappropriate for the president to take action against Gordhan when there is a dispute pending before the high court over the legalities of the findings, and the president’s power to exercise any disciplinary action (in the absence of any employment relationship) is also being legally contested in that dispute;
• The president has taken note of the findings against Gordhan;
• The president will wait for the review proceedings to clarify what disciplinary powers the constitution allows him to exercise over Gordhan, and whether there are lawful grounds to exercise such disciplinary powers.

In the PP’s reply to the president’s assertion that a review application stays the implementation of any remedial action, she replied that this “is a sheer display of cluelessness on the person giving such advice”.

She further declares that his letter is based on “the wrong understanding of the law” and that refusing to carry out the remedial action is tantamount to the president’s failure to uphold the constitution.

In a further letter she uses stronger words, threatening that the president’s “persistence on wilful non-compliance” with her remedial action is “contemptuous” of her office and is a “breach of the Honourable Presidents constitutional duties” (sic).

She gets carried away and hints at an impending constitutional crisis if the president does not act as she has mandated him to.

The court noted that the PP did not set out why she had jurisdiction to claim that there were special circumstances for entertaining a complaint that was reported more than two years after an incident had occurred (in this case, the investigative unit was established in 2007). Nor could she identify the special circumstances.

The court found that Gordhan had a prima facie right for an interim interdict to be granted.

The court rejected the PP’s argument that the suspension order would weaken her office and weaken accountability, and that allegations made by Gordhan undermine “the dignity, independence, impartiality and effectiveness of the PP”.

The court held that if the review application found the PP to be biased and acting with an ulterior purpose, this would constitute grounds for the review of her decision.

The court also pointed out that the suspension of the PP’s order does not weaken the office of the PP.

The court summarised its findings as follows: “This court need not and did not rely on the review grounds that the PP acted with ulterior purpose and bias when finding as the PP did and ordered as she did. This is a debate for the review application.”

The court also referred to the PP’s orders as being “vague, contradictory and/or nonsensical”.

‘Inexplicable and contradictory’

The court noted inexplicable and contradictory orders that had to be carried out simultaneously within 30 days; that a plan detailing the disciplinary action had to be submitted within 30 days; and at the same time, disciplinary action had to be taken within those 30 days. The order against the Speaker of the National Assembly, Thandi Modise, was similarly contradicted in that the speaker was given 14 days in which to submit the findings against Gordhan to the Joint Commission on Ethics.

The court also pointed out the PP’s lack of understanding of the law in  that a violation of section 209 of the constitution and section 3 of the National Strategic Intelligence Act would not constitute a criminal offence.

The PP is an office of critical importance in upholding our constitution, a central force in fighting corruption, unlawful enrichment and prejudice, and in upholding good governance. The PP cannot be found to be biased, nor acting with an ulterior motive. Busisiwe Mkhwebane will be defending a number of court reviews over the foreseeable future. The judgments will be critical for her future, as well as South Africa’s.

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