President Cyril Ramaphosa and Public Enterprises Minister Pravin Gordhan have both asked for the court to grant a full and open hearing as the case is an important one; in addition, Ramaphosa asks the court to deny Mkhwebane her right to withdraw her appeal against an interdict granted in July for Gordhan and Ramaphosa by the High Court.

In July, the two were granted the interdicts to stop the implementation of remedial action against Gordhan in relation to a finding by the Public Protector that he was in violation of the Executive Ethics Act with regard to complaints about his time as the commissioner of SA Revenue Service (SARS). Ramaphosa is part of the court case because Mkhwebane instructed him to take remedial action against his Cabinet minister.

Ramaphosa also succeeded in interdicting Mkhwebane from implementing her remedial action on the donations the #CR17 campaign received from Bosasa and other funders. EFF president Julius Malema then sought the intervention of the Constitutional Court to make a finding on whether or not Mkhwebane’s remedial action can be put on hold.

In his response to the EFF bid, Gordhan says, “Indeed, judicial review of a report by the public protector enhances the Office of the Public Protector by ensuring that its reports are upheld where there are no grounds to set them aside, and set aside where there are grounds to do so.”

He adds: “The submissions made in this application by the EFF against interim relief pending the final determination of the review undermines the constitutionally-mandated scheme of judicial review and access to justice. The alternative contended for by the EFF (immediate implementation of remedial action regardless of the pending review proceedings) would shield remedial action from judicial review.”

In his papers, Gordhan says both the public protector and EFF are inconsistent in their approach to interdict applications.

“So too is the EFF’s selective attitude to the issue, where it only seeks to intervene in pending litigation brought by or relating to me…indeed, the inconsistent stance of the EFF here is merely the latest example of its flip-flopping on the overarching question of the public protector’s fitness to hold this important constitutional office,” says Gordhan.

For his part, the President says the EFF “has no reasonable prospects of success” but, because it raises important issues, he asks for a full hearing of the issues and requests the court not to dismiss the party’s bid to appeal the interdict.

He says that three High Court disputes involving his office and that of the public protector have given rise to a “heated” and “vituperative” public debate and which was damaging to the Executive, the public protector and the courts.

A full hearing would help deal with the issues raised in the debate and he asks that Mkhwebane’s decision to withdraw her appeal should not be granted by the Constitutional Court. DM