Public Protector Busisiwe Mkhwebane is challenging Public Enterprises Minister Pravin Gordhan’s application to interdict her report calling for disciplinary action against the minister because she had been insulted and her office disrespected, the North Gauteng High Court heard on Tuesday.
Representing Mkhwebane, Advocate Thabani Masuku said under normal circumstances the Public Protector would not oppose the application but Gordhan made “vexatious” allegations against the Public Protector, claiming she wanted to undermine President Cyril Ramaphosa’s administration, was working with those trying to defend State Capture, and should be sanctioned by Parliament.
The court heard on Tuesday Gordhan’s application for an interdict against the Public Protector report on his work at SARS. It found he had violated the Executive Ethics Code and should be disciplined by the President.
“Can she walk confidently in the streets of South Africa without being called a member of State Capture?” asked Masuku, saying Gordhan had undermined his duty to respect the Public Protector’s office.
Advocate Wim Trengove, for Gordhan, requested that the court only rule on the minister’s allegations against Mkhwebane during the judicial review of the report and not the interdict application.
“The essence of the case is this: the Public Protector without any opposition to the application or anybody else to comment on her remedial orders issued remedial orders which seriously affect the applicant [Gordhan],” said Trengove.
“The only question is whether those orders should be enforced despite the fact that there is a challenge to their lawfulness,” he continued.
Mkhwebane ordered Ramaphosa to discipline Gordhan within 30 days of the release of her report, by 4 August, and for the criminal authorities to investigate whether it should take action against him for establishing the so-called SARS “rogue unit”.
Trengove said those orders should be suspended while the review was pending. He said Gordhan faced irreversible consequences should the orders go ahead as Mkhwebane had already judged his guilt and should he be removed from Cabinet he may have no later recourse even if the report is overturned by a court.
Trengrove disputed the Public Protector’s finding that the SARS investigative unit established by Gordhan was unlawful and said she and the EFF, which joined the case, relied on laws on intelligence gathering related to national security issues rather than those dealt with by SARS.
He also disputed Mkhwebane’s finding that Gordhan deliberately misled Parliament when he said he had never met the Gupta family.
“His explanation is an entirely plausible one and there’s no justification for its rejection and his explanation is entirely plausible,”said Trengove on Gordhan’s claim that he forgot the meeting.
Trengrove also said Mkhwebane failed to offer Gordhan a chance to comment on her recommended remedial action and she did not explain why she had pursued a matter after her two-year mandate on opening such issues had expired.
Advocate Matthew Chaskalson, representing Ramaphosa, also called for an interdict. He said the Public Protector had contradicted herself in communication with the Presidency, first saying Ramaphosa must interdict the order if he wants to wait until the review is finalised, and then calling him “ostensibly contemptuous” when he applied to do so.
Chaskalson also questioned whether Ramaphosa has powers to discipline Cabinet ministers or could only appoint and remove them as they do not have a standard employer-employee relationship.
Former deputy SARS commissioner Ivan Pillay’s counsel Ross Hutton said an interdict had no bearing on what the NPA or other investigative agencies would do. “What it stops is it stops those functionaries basically marching to the drum of the Public Protector in the interim,” he said.
Masuku, however, claimed that the Public Protector had been undermined and if the interdict was granted, institutions of government would in future dismiss her reports.
“In the power to appoint and the power to dismiss is the implied power to discipline,”Masuku said to the claim that Ramaphosa may not be able to discipline his Cabinet Ministers.
The interdict hearing continued on Tuesday afternoon. DM