Public Protector Busisiwe Mkhwebane’s office has been involved in court action all week. Most of it has involved national political leaders and, therefore, the country’s future. On Thursday, her lawyers took on a court application from President Cyril Ramaphosa.
Mkhwebane was represented by EFF national chair Dali Mpofu SC, while his party president, Julius Malema, watched the EFF lawyers (separate from Mpofu) from the gallery. Public Enterprises Minister Pravin Gordhan, a key Ramaphosa ally, was also represented.
The public protector has been repeatedly dragged to court recently as parties implicated in her reports want to interdict her remedial actions from being implemented. When Thuli Madonsela was in the role and former president Jacob Zuma tried to ignore her orders on his Nkandla upgrades, the Constitutional Court ruled her office’s orders were binding unless overturned on review.
The current legal questions is: what happens in the interim if the public protector’s reports are taken on review and a court is still to decide on their legitimacy, especially when there’s one side suggesting Mkhwebane has ulterior political motives and another saying democracy is at stake if a Chapter 9 institution’s orders can be brushed aside until the wheels of justice finally turn?
Gordhan on Monday won his interdict application to suspend Mkhwebane’s wide-ranging orders against him while he challenges her report. On Tuesday, horse racing group Phumelela Gaming and Leisure interdicted her report without opposition from Mkhwebane. Ramaphosa in Tshwane’s Palace of Justice on Thursday argued he should be able to do the same.
The president was challenging Mkhwebane’s remedial action instructing him to give her a plan on disciplining Gordhan and then acting on it after she found the minister wrongly approved former SARS deputy commissioner Ivan Pillay’s early retirement at SARS when he was head of the revenue body.
Hamilton Maenetje SC, for Ramaphosa, said there were two grounds as to why the president should not yet have to act against Gordhan. First, he’s already complied with Mkhwebane’s order. She told him to consider her report, inform her how he’d discipline him and take appropriate action.
Ramaphosa wrote to Mkhwebane to say he’d considered the report, but it would only be reasonable to take appropriate action once Gordhan’s review was completed. Otherwise, he wouldn’t know what penalty might be appropriate or if one was needed at all.
If the court ruled that that wasn’t enough, Maenetje said Ramaphosa should receive an interdict against disciplining Gordhan while the report was still subject to judicial review.
“The overall interests of justice favours the granting of this stay application,” he said.
If Mkhwebane wanted to force him to act without first hearing from the courts on the accuracy of her findings, he said:
“To say it’s concerning is an understatement.”
“She is also subject to the law. She’s not unassailable.”
Advocate Michelle le Roux, representing Gordhan, asked:
“Why are we here?”
She said the same court had granted Gordhan and then Phumelela’s interdict applications pending their review of Mkhwebane’s reports with “overwhelming” similarities between the cases.
Mkhwebane has admitted she would normally not oppose such interdicts but, Le Roux suggested, she appears to when Gordhan is involved.
She questioned how Ramaphosa could act while the review is pending: “What he’s being asked to do is implement appropriate disciplinary action… which is impossible at the moment for the president to rationally decide what appropriate disciplinary action would look like.”
Le Roux suggested that by trying to force Ramaphosa to act before the courts had decided on Gordhan’s case, Mkhwebane was acting as if she was above the law.
Mpofu entered on behalf of the public protector with his usual vigour:
“It has become fashionable to make the kind of suggestions that are made here about punitive costs etc and insult the dignity of the public protector (and) the dignity of that office,” he said.
“There is not a chance that this kind of case can succeed on its terms.”
Mpofu rejected Ramaphosa’s claim that he had complied with Mkhwebane’s remedial action because she told him to submit a plan to discipline Gordhan subject to her approval, which she never approved.
“It’s impossible for this court to find that it has been complied with,” he said.
“This must be some kind of a joke.”
Mpofu said Ramaphosa could not interdict the remedial action because he was not a party to the review proceedings. He should have applied to review Mkhwebane’s report and interdict it in the interim and without one, you can’t have the other.
“You have the president here doing the bidding for Minister Gordhan,” he said.
“We can’t create a new type of interim interdict in this court that has never been seen in the world.”
Representing the EFF, which opposed Ramaphosa’s application as it did Gordhan’s a week earlier, Vincent Maleka SC suggested the president was biased towards his minister while undermining Mkhwebane’s office by not implementing her order.
The EFF, a litigant in the Nkandla matter against Zuma, has consistently maintained that the public protector’s remedial orders must be complied with and not doing so undermines her office and therefore sacrifices accountability.
Le Roux and Mpofu had a brief stand-off, as far as stand-offs go in the Palace of Justice, regarding whether Mkhwebane was targeting Gordhan. Le Roux said the minister was under scrutiny in four public protector investigations and questioned whether there may be political motives. Mpofu defended Mkhwebane’s office, asserting its authority to pursue accountability.
Judgment is expected to be delivered on 8 August. The court will need to elaborate on the terms under which the public protector’s remedial actions can be interdicted, but that will be a footnote in the larger battle of a state at war with itself, where the president will soon have to take his own case against Mkhwebane for alleged campaign finance infringements. DM