President Cyril Ramaphosa squares up to Public Protector Busisiwe Mkhwebane in another round of legal warfare on Thursday; this time it is about whether or not he can delay acting on an instruction from the public protector to discipline Public Enterprises Minister Pravin Gordhan.

Mkhwebane found in May that Gordhan illegally signed off on early retirement for former SARS deputy commissioner Ivan Pillay. On Monday, North Gauteng High Court judge Sulet Potterill granted an interdict to Gordhan to stay (delay) the remedial action against him pending a review to the High Court. He denies that the early pension agreement was illegal.

Dotted throughout her court papers is Mkhwebane’s repeated instruction that Ramaphosa act against Gordhan immediately as she has instructed; and her view that Gordhan’s court review will fail. Ramaphosa will argue that the protector should back off as she is skirting close to imposing on his presidential prerogative and the constitutional separation of powers.

In her court papers to oppose Ramaphosa’s court application to request an interdict, Mkhwebane brings out all her guns. She alleges that:

• Ramaphosa is favouring Gordhan over her office because Ramaphosa and Gordhan are politically aligned;

• Ramaphosa offends the letter and spirit of the Constitution which calls upon organs of state to foster friendly relations and only to litigate as a last resort;

• The president’s application leaves a “sour taste in the mouth”;

• Ramaphosa is guilty of a “serious breach of protocol” for aligning himself with Gordhan whom she alleges has insulted her office;

• Accuses Ramaphosa of a “pre-emptive strike” on her related to her bombshell findings against him related to the R500,000 donation to his campaign from Bosasa, the facilities management company at the heart of huge corruption allegations.

“I submit that the constitutional work of the public protector will be undermined, stifled and incapacitated,” says Mkhwebane’s court papers in which she opposes the president’s request for an interdict to delay implementation of her order to act against Gordhan.

In her spitfire application, Mkhwebane says Ramaphosa has approached the wrong court – “I am advised that the Constitutional Court enjoys the exclusive jurisdiction to decide the question of the failure of the President to fulfil his constitutional obligations” – and that the court cannot suspend Ramaphosa’s constitutional duties as it would offend the separation of powers as “… the courts are not entitled to order that the President be interdicted from performing his constitutional powers. Such an order is unlawful and would constitute an unconstitutional interference with the powers of the head of the national executive to hold members of the executive to account,” says Mkhwebane in her papers.

‘It’s favouritism’

By far the largest chunk of Mkhwebane’s argument is devoted to her shock that Ramaphosa has associated himself with Gordhan’s review of her report.

“It is undesirable… that the President should involve himself in a manner that clearly suggests he has taken sides. More so when that dispute… involves a Minister who is generally regarded as being a close friend or ally of the President’s.”

She continues: “… the most disturbing feature of this application is the President associating himself and effectively supporting the review application of Minister Gordhan which contained such irrelevant, insulting and disrespectful content and has no basis in law and certainly no prospects of success”.

A few more pages into her papers, Mkhwebane accuses Ramaphosa of bias, “given the well-known close relationship between the President and Minister Gordhan, not to mention the fact that they both come from the same political party and/or school of thought…”

Who’s the boss?

In her May report, Mkhwebane instructed Ramaphosa to furnish her with an implementation plan of how he intended to take action against Gordhan.

In his responses to her, the head of state said he took note of her instructions and had complied in that he said an implementation plan would be provided once the court had reviewed Gordhan’s action in relation to the early pension.

Mkhwebane’s response to this is so angry that her words bounce across the page like inflamed ink.

“The third action, that of submitting an implementation plan for the approval of the public protector, has not been properly done. An implementation plan has indeed been submitted and within the requisite time period but it has clearly not been approved by the public protector. In fact, I disapprove of the alleged implementation plan because it is not what I requested. Self-evidently, an implementation plan that says there will be no implementation or that implementation has been unilaterally suspended by the President, is no implementation plan.”

The argument is expected to continue in the North Gauteng High Court on Thursday. DM