President Cyril Ramaphosa will tell the North Gauteng High Court on Thursday that yet another court date with Public Protector Busisiwe Mkhwebane feeds into the narrative that the state is at war with itself.

“It is a constitutionally unpalatable state of affairs to have the public protector, the minister (and now, the president) being embroiled in litigation against each other.”

President Ramaphosa’s appeal to the High Court for an interim interdict to stay (put on hold) the remedial action Mkhwebane has ordered against Public Enterprises Minister Pravin Gordhan, for approving an early pension request for a staff member, is shaping into a legal civil war.

In the papers, the public protector and the president each accuse the other of threatening a constitutional crisis through their actions.

In a report in May 2019, Mkhwebane found that Ramaphosa should take “appropriate steps” against Gordhan whom she found guilty of maladministration for signing off on an early pension agreement for the former deputy SARS commissioner Ivan Pillay, after receiving legal advice saying Gordhan’s action was legal. In June, she wrote to the president asking why he had not complied, and she added a timeline of when he should.

Ramaphosa said he would await the court’s decision after Gordhan took it on review – a decision that made the public protector see red.

She alleged in correspondence with Ramaphosa that this decision would violate the Constitution, prompting the head of state to seek an interdict to stay the implementation of her report until it is reviewed in court.

Separation of powers threatened by the public protector, says the president

Ramaphosa says in his court papers that he complied with the public protector’s remedial action and submitted an implementation plan to her, as instructed in her finding released in May.

“…(T)he remedial action did not impose timelines on the President as to when the appropriate remedial action should be taken… it was improper and unlawful for the Public Protector to attempt to amend the remedial action (Mkhwebane tried to introduce timelines for Ramaphosa to take action against Gordhan after tabling her report).

“… the President brings this application for a declarator or stay to avoid the suggestion that the President is refusing to comply with the Public Protector’s remedial action,” read court papers for the interdict application on Thursday, August 1.

In his papers, Ramaphosa says Mkhwebane’s actions threaten the separation of powers because she skirts close to interfering with presidential prerogative.

“It is apparent that the Public Protector does not agree with the President’s exercise of his discretion… The Constitution warns all spheres of government to exercise their powers and perform their functions in a manner that does not encroach on… the institutional integrity of government in another sphere.

“With complete deference to the Public Protector… the President ought not to be dictated to or badgered, on matters that lie within the exclusive heart and preserve of executive power.”

In summarising his request to the court to grant an interdict, Ramaphosa says the public protector’s report into Pillay’s early retirement left him with discretion about when he would take action against Gordhan. He acted rationally and within the law in his decision, says Ramaphosa. Then, he lands a blow.

“… (C)an the Public Protector amend her remedial action ex post facto (and by mere written letter of demand) and instruct the President to take remedial action by a specific date? The answer is absolutely not.”

Mkhwebane is opposing Ramaphosa’s request for the declaratory order. She will argue that a declaratory order will stifle and undermine her office; she will also argue that only the Constitutional Court can hear Ramaphosa’s request for the interdict. DM