The Constitutional Court heard two urgent applications brought against Gordhan by the EFF and Public Protector Busisiwe Mkhwebane on Thursday 28 November 2019, to oppose a high court decision granting Pravin Gordhan an interim interdict, suspending the enforcement of any disciplinary action directed against him in Mkhwebane’s most recent report.

Gordhan has taken the report on judicial review to challenge its validity claiming that Mkhwebane’s findings were fundamentally flawed, vague and nonsensical. The review process is currently pending and makes up Part B of the minister’s backlash against the public protector.

The report follows an investigation into the conduct of Gordhan during his time as commissioner of the South Africa Revenue Services (SARS), particularly his alleged role in a “rogue SARS unit”. Mkhwebane found that Gordhan violated the Executive Ethics Code of Conduct after he allegedly lied to Parliament, saying that he had had no interactions with the Guptas and that he was guilty of maladministration for his establishment and involvement in a secret intelligence-gathering unit.

The scathing report recommends a number of punitive, remedial actions to be taken by the president, including a directive that he expeditiously considers the findings as they pertain to Gordhan and take appropriate disciplinary action against the minister within 30 days. It also requests that the National Prosecuting Authority (NPA) and the police conduct an investigation into possible criminal charges against him.

Mkhwebane went as far as to assert that the severity of her allegations justify the dismissal of the minister from Cabinet.

Pending the outcome of Part B, Gordhan successfully launched Part A: an urgent application in the Pretoria High Court for an interim interdict to suspend the remedial action directed against him in Mkhwebane’s report.

Judge Sulet Potterill awarded the relief, finding that Gordhan had plainly satisfied the test for an interdict, and noted the fact that while the public protector would not suffer any harm in the temporary suspension of disciplinary measures against the minister, Gordhan would.

“The harm to Gordhan speaks for itself [and it] would be irreparable if the interdict is not granted. Being prosecuted, disciplined and investigated most certainly constitutes harm [which] may be irreparable and irreversible by the time the review application is heard, especially if [is] successful,” said Potterill in her written judgment.

“The Report maligns him as being untruthful and being a spy and would impact his political career as well as his personal circumstances.”

The EFF and public protector took no time to attack Potterill’s ruling, each launching respective urgent applications in the Constitutional Court challenging the high court’s authority to interfere and ultimately prohibit the powers of the public protector. Both parties ultimately narrowed in on how Potterill had applied the test for an interdict.

On Thursday 28 November 2019, the EFF argued that by awarding the interdict, the high court had reduced the public protector to a mere paper-pusher and by “freezing” her directives, had undermined the proper functioning of her office.

“The order stopped the public protector dead in her tracks… what you get at the end is a piece of paper and nothing more,” said advocate Tembeka Ngcukaitobi for the EFF.

“The irreparable harm is the harm to the institutional effectiveness of the office of the public protector,” he said, disagreeing with Potterill’s submission that the public protector would emerge unscathed.

Ngcukaitobi argued that public officials, like Gordhan, will be encouraged to transgress the law and continue to act with impunity while the public will continue to lose faith in the effectiveness of the office. The solution, they argued, was a stricter test for an interim interdict against the PP, one that was “tailor made” and “public protector sensitive” and would require an additional requirement to show that interim relief would not impermissibly hinder the accessibility and effectiveness of the public protector.

The Bench of the Constitutional Court spent the majority of Advocate Thabani Masuku SC for Mkhwebane’s submissions trying to ascertain what exactly her reason for the opposition was.

Was it a misapplication of the test or did she want the test developed? In the end, the Court was left with the general impression that Mkhwebane was only opposing Gordhan’s victory because of what he had said about her in his application to achieve it.

Gordhan had included several weighted inferences about Mkhwebane in his papers before the high court, alluding to 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”.

“If you remove what you regard as scandalous remarks weighted against your client by Mr Gordhan, would you have opposed the application?” Justice Rammaka Mathopo asked counsel for Mkhwebane on Thursday.

This question was rephrased and referred back to Masuku a number of times.

The answer was never forthcoming, Masuku each time deferring to the fact that Potterill had failed to consider the independence, impartiality, dignity and effectiveness of the public protector, while much of this attention had been afforded to the Minister.

Advocate Wim Trengove SC for Gordhan sought to put each application to bed, arguing that neither even met the requirements to be heard in the court.

“The only issue before the court is whether the high court correctly applied the test or not. This is neither a constitutional point or a point of public interest,” he said.

Nevertheless, Trengove addressed the remedial action set out in Mkhwebane’s report, arguing that the majority of her findings were incoherent and bizarre and simply spoke of a reckless determination to making findings against the minister.

On the other hand, when Mkhwebane’s directives were rational and comprehensible, they spoke to the heart of the president’s power to exercise his own discretion.

“The public protector has made very serious findings against Mr Gordhan and has made very far-reaching orders, not only against him but against the president and other senior functionaries,” said Trengove.

So what is better, he asked – compel the president to immediately implement the orders, despite the fact that they may be improper, or pause this remedial action and implement it if and when it is found to be lawful?

While Ramaphosa has remained beside Gordhan throughout the saga and supported his efforts for interim relief, he has averred that he will take appropriate action if and when the time comes.

“The president has gone on oath to say that if [the remedial action] survives scrutiny, it will be implemented,” said advocate Matthew Chaskalson SC for President Cyril Ramaphosa.

“[He] doesn’t want to take sides because if the report survives the review, he will be required to take disciplinary action.”

In terms of Mkhwebane’s report, this disciplinary action may require that the president remove Gordhan from his Cabinet, a touchy move for Ramaphosa as the two have remained closely aligned in government and in the ANC.

Gordhan and Ramaphosa want the EFF and Mkhwebane’s applications thrown out, if not on a question of jurisdiction, then at least because a temporary halt on the consequences of the report is a plainly appropriate remedy pending the review.

“The investigation is over, the report is out and nothing has been stopped. The president is merely deferring the appropriate remedy until a finding of validity has been made, ” said Chaskalson.

Advocate Ross Hutton SC for Ivan Pillay concurred, contributing briefly and neatly:

“There is such a strong case for the granting of interim relief that even applying an elevated test as raised by the EFF, would still have granted the interim interdict,” he said.

The Constitutional Court has reserved judgment for a date still to be determined. DM