Ramaphosa wins against ‘mind-boggling’ Mkhwebane, with costs granted against her and EFF

The High Court in Pretoria on Thursday on Thursday granted President Cyril Ramaphosa an interdict against having to implement remedial actions against Public Enterprises Minister Pravin Gordhan contained in a report against him by Public Protector Busisiwe Mkhwebane.

Ramaphosa will now only have to take action against Gordhan within 30 days after Gordhan’s review application has been finalised.

The judge also ruled against the EFF and the public protector on costs.

EFF spokesperson Mbuyiseni Ndlozi said immediately after the judgment that his party would take the ruling on appeal. He claimed the judge had struggled to read her own judgment, and added that the judge had not extrapolated on the circumstances that would allow the public protector’s binding recommendations to be suspended.

The EFF are also appealing a similar judgment by Judge Sulet Potterill.

The remedial action partly involves a matter of early retirement payment to former Sars commissioner Ivan Pillay.

Judge Lettie Molopa-Sethosa said Ramaphosa’s actions were rational and he was not challenging the factual findings of the public protector.

“All he is saying is ‘let me await the final findings of the review’,” ruled the judge, saying it was clear that Ramaphosa was not trying to avoid compliance with Mkhwebane’s orders. She said she was satisfied that he had made out his case.

Molopa-Sethosa said Ramaphosa was obliged to act rationally and argued it was “mind-boggling” and “not understandable” that Mkhwebane had opposed his application, since she was not acting consistently in her approach to review applications and interdicts.

Mkhwebane was supported in court by the Economic Freedom Fighters (EFF), which the judge consistently referred to as the “Economic Freedom Front”.

She ruled that the EFF was “basically being unreasonable” against the president.

You can watch the full judgment below, courtesy of news channel eNCA.

Mkhwebane’s advocate in the case, Dali Mpofu, is the chairperson of the EFF, which wants Ramaphosa to fire Gordhan. Mpofu argued that Ramaphosa’s attempt to oppose Mkhwebane would result in a “bloodbath” for South Africa’s democracy if granted. He said it would be “degeneration of justice and abuse of power”.

Ramaphosa’s lawyers, however, have argued that Mkhwebane has not been consistent in how she opposes or does not oppose interim relief applications, and claimed any attempt to understand the reasoning behind them would be difficult.

In her report released in May, Mkhwebane found Gordhan to have acted inappropriately during his time as finance minister when he approved an early retirement payout to Pillay.

Mkhwebane also ruled that Gordhan had violated the constitution. She recommended that Ramaphosa take disciplinary action against him within 30 days.

At the end of that period Mkhwebane wrote to Ramaphosa and accused him of being in contempt of the office of the public protector for his failure to take action against Gordhan.

Ramaphosa then filed an urgent application seeking a court declaration that he had complied with the public protector’s remedial action by noting Mkhwebane’s report and the review application by Gordhan on the matter, which was and still is before the courts.

Gordhan last Monday won an interdict against the report’s recommendations against him, until the review in court had been completed.

Ramaphosa’s lawyers argued in their case that his decision to wait for the outcome of Gordhan’s court challenge was justified by the separate court ruling last Monday by Judge Sulet Potterill.

Ramaphosa subsequently told the public protector to withdraw her opposition to his interdict application or she could be subjected to another damaging costs order, but she did not back down.

In another matter, Mkhwebane’s office, however, decided not to oppose Ramaphosa’s application to interdict her Bosasa report against him, which found the president misled parliament about campaign finance donations and may even have engaged in money laundering.

Mkhwebane’s spokesperson Oupa Segalwe said on Wednesday this did not mean she was backing down against Ramaphosa but she was instead merely accepting that Ramaphosa’s court review would be expedited.

She had earlier planned to oppose Ramaphosa’s interdict application to postpone her remedial action regarding the National Prosecuting Authority (NPA) in her report against him.

The public protector had instructed NPA boss Shamila Batohi to submit, within 30 days, a plan that Mkhwebane would approve on how the NPA would investigate the money laundering allegations and “conduct further investigation into the prima facie evidence of money laundering as uncovered during my investigation, and deal with it accordingly”.

The presidency and Ramaphosa himself have said that Mkhwebane erred in fact and law in her report by, among other things, apparently not understanding what money laundering actually is.

(Edited by Charles Cilliers)

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