‘Disappointed’ Mkhwebane to appeal ‘outrageous’ Gordhan interdict ruling

In a statement on Monday night, Public Protector Busisiwe Mkhwebane expressed her disappointment with the high court’s interdict against her recommendations against Public Enterprises Minister Pravin Gordhan and Sars.

Her office said the public protector disagreed with Monday’s ruling by Judge Sulet Potterill of the North Gauteng High Court and would take it on appeal.

Public protector spokesperson Oupa Segalwe explained: “Minister Gordhan was seeking an interdict to suspend the implementation of the remedial action set out in paragraph 8 of the Public Protector’s ‘Rogue Unit’ report.”

In the report, the Public Protector had found, among other things, that Minister Gordhan deliberately misled the National Assembly in failing to disclose a meeting with a member of the Gupta family, established an intelligence unit in violation of intelligence prescripts during his tenure as Sars commissioner and that Ivan Pillay was appointed deputy SARS commissioner and subsequently commissioner while he did not possess the necessary qualifications.

“The remedial action taken included that President Cyril Ramaphosa should take note of the findings and take appropriate disciplinary action against Minister Gordhan, that the speaker of the National Assembly should refer the findings against Minister Gordhan to the Joint Committee on Ethics and Members’ Interests for consideration and that the minister of state security should ensure that all intelligence equipment utilised by the SARS intelligence unit is returned, audited and placed into the custody of the State Security Agency,” said Segalwe.

The interdict does not mean Gordhan is 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 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 had been competent or biased.

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

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 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.

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 responded on Monday night, “with respect”, that the judge had “overreached” herself in granting the interdict. Instead of confining herself to matters relating to Gordhan’s application for the staying of the implementation of remedial action, she had gone “beyond her scope and dealt with merits of the review application”.

“In addressing matters she had not been called upon to hear and pronouncing on issues that were not placed before her, Judge Potterill effectively tied the hands of and pre-empted the outcome of the review court. This raises the question whether there is still a need to continue with review proceedings.

“Further, it is curious that the judge deemed it fit to ventilate Mr Pillay’s qualifications or lack thereof and pronounce on the issue, and yet held that the disparaging remarks that Minister Gordhan made against Advocate Mkhwebane in his application for both the review and the interdict, which the Public Protector had requested the court to strike out, be deferred for the review proceedings.

“The Public Protector has also not taken kindly to the fact that, in her ruling, Judge Potterill relied on correspondence between her office and President Ramaphosa even though the letters concerned had nothing to do with the ‘Rogue Unit’ matter before her but related instead to the Pillay pension investigation. In addition, these documents were only handed in at court on the day of the hearing and other parties had not been favoured with an opportunity to engage on them.”

Also of concern to the public protector was Potterill’s “use of language that is unbecoming of a judicial officer and which does not accord with the decorum of the court”.

“In her ruling, the judge outrageously labelled the Public Protector’s remedial action ‘nonsensical’.

“The Public Protector is considering the legal recourse and remedies available to her including forwarding this matter for the consideration of the Judicial Services Commission.”

Another source of disquiet for Mkhwebane, her office said, was the recent “scourge” of separating her from the office she holds, which Judge Potterill now appeared to be perpetuating, Segalwe alleged.

“In this instance, she made a personal costs order even though none of the parties argued for that.”

(Edited by Charles Cilliers)

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