Public Protector Busisiwe Mkhwebane’s remedial orders against Public Enterprises Minister Pravin Gordhan were vague and nonsensical, the North Gauteng High Court ruled on Monday in the latest blow for the embattled head of the Chapter 9 institution.
The court ruled in favour of Gordhan’s application for an interim interdict to suspend the implementation of Mkhwebane’s remedial orders while he takes her report into his work at the South African Revenue Service (SARS) and conduct in the executive on judicial review.
“Much of the orders are vague, contradictory and/or nonsensical,” said Judge Sulet Potterill, in a judgment that probably adds ammunition for those calling for Mkhwebane to be removed.
In Mkhwebane’s report released earlier in July, she found Gordhan violated the Executive Members Ethics Act when he told Parliament he had never met the Guptas and was guilty of maladministration for his role in establishing an intelligence-gathering unit while he was SARS commissioner.
Mkhwebane ordered President Cyril Ramaphosa to discipline Gordhan within 30 days, for Speaker Thandi Modise to refer him to the joint committee on ethics and members’ interests, and for SAPS and the NPA to investigate criminal charges against him and the SARS leadership that established the so-called “rogue unit”.
“The report maligns him as being untruthful and a spy, and would impact his political career and his personal circumstances,” said Potterill in her judgment.
She found Gordhan would suffer irreparable harm if Mkhwebane’s orders were implemented while he was still challenging the report in court. She found he had a prima facie case against the report.
“There is no harm to the PP or her office if the remedial action is suspended pending review,” Potterill continued.
She said Mkhwebane’s lawyers admitted they would normally not be opposed to such an interdict application.
Mkhwebane’s office has jurisdiction to investigate events up to two years old but she did not explain any special circumstances for investigating Gordhan’s work at SARS over a decade ago.
The public protector and the EFF, which joined the case, said granting Gordhan an interdict would undermine a Chapter 9 institution and hinder future attempts to hold officials accountable. Potterill dismissed the arguments.
Potterill said it was “far-fetched” to argue that granting the interdict would threaten the office of the public protector and neither Mkhwebane’s nor the EFF raised relevant constitutional concerns.
Monday’s ruling is the latest blow for Mkhwebane who was found by the Constitutional Court last week to have acted in an “unacceptable way” while investigating the Bankorp saga and ordered to personally pay some of the legal costs of her opponents. Her impartiality and understanding of her role and responsibilities was also found lacking in her investigation into the Estina Dairy issue.
Monday’s court ruling is a significant victory for Gordhan and Ramaphosa. Gordhan is one of the president’s key allies in both government and the ANC. Had Mkhwebane’s report stood while a review was pending the president may have had to remove the minister from Cabinet.
The president has also been in the public protector’s crosshairs. She found he had misled Parliament and violated the Executive Ethics Code regarding a R500,000 donation Bosasa boss Gavin Watson made to his CR17 campaign for ANC president.
Ramaphosa said her report was “fundamentally and irretrievably flawed” and is taking it on urgent judicial review.
In court papers, Gordhan claimed Mkhwebane had “blatantly political motives” and her report should be understood as part of an effort by those “who seek to return South Africa to the dark path of lawlessness, corruption and securitisation, and away from our journey to accountability and constitutionalism”.
Gordhan’s counsel did not pursue the argument during court proceedings last week and they are likely to be debated when the report is challenged on review. Mkhwebane vehemently denied claims of bias and said Gordhan was undermining her office and its ability to hold officials accountable.
The EFF has staunchly defended Mkhwebane and maintained its attacks against Gordhan. On Monday the party claimed the court was biased against the black lawyers that represented it and the public protector and would challenge the ruling in the Constitutional Court.
“The judge was very pleased and was always willing to listen and hear the arguments of all those whites, whilst showing irritation, to the extent of constantly interrupting the black lawyers. In the proceedings, it was as if those lawyers did not belong in that court,” said an EFF statement.
“Nevertheless, above all, we believe that the interdict essentially shuts down what is a constitutionally created institution. We shall, therefore, appeal this decision with the Constitutional Court. It is a fight to the end,” it continued.
Potterill said the case did not involve constitutional issues and ordered the public protector and EFF to pay the costs for the case. DM