Nkandla ruling not applicable this time – Ramaphosa

President Cyril Ramaphosa’s lawyers have hit out at Public Protector Busisiwe Mkhwebane and the EFF for comparing him to former President Jacob Zuma – and insist that, unlike Zuma, Ramaphosa has never sought to ‘second guess’ the Public Protector. According to a Business Day report by legal writer Karyn Maughan, Ramaphosa’s legal team on Friday filed ‘heads of argument’ at the Constitutional Court, which is to decide on whether Mkhwebane is correct to demand the President must take ‘appropriate disciplinary action’ against Public Enterprises Minister Pravin Gordhan over findings she made against him in her report on the so-called SARS ‘rogue unit’, even though the Minister is seeking to overturn that report in court. Gordhan successfully applied for an interim interdict staying the implementation of Mkhwebane’s remedial action against him until his review of the ‘rogue unit’ report is finalised. But Mkhwebane and the EFF are not happy about the ruling by Judge Sulet Potterill, with the Public Protector saying the judge’s orders in favour of Gordhan ‘stripped’ her ‘of the only constitutional power she has to perform her constitutional functions’. Both have relied heavily on the Constitutional Court’s ruling in the Nkandla saga that Zuma had violated the Constitution by failing to act on Madonsela’s orders that he pay back a reasonable percentage of the taxpayers’ money spent on non-security upgrades to his homestead, to argue that Ramaphosa has acted unlawfully by not acting against Gordhan. But Ramaphosa’s lawyers argue that the comparison is without substance. ‘Unlike President Zuma in the Nkandla case, the President is not second-guessing the findings of the Public Protector or refusing to implement the remedial action she directed. He merely wants to defer taking “appropriate disciplinary action” against Minister Gordhan until after the courts have determined in the pending review application whether the Public Protector’s findings and remedial action stand up to judicial review, and if so, to what extent.’

The President’s legal team argues his decision to await the outcome of the review application is 'reasonable'. According to Business Day, his lawyers point out that the findings that Mkhwebane made against Gordhan, in relation to a SARS investigative unit that she decided had been unlawfully established, ‘are so serious that the Public Protector seems to regard removal from the Cabinet as an appropriate sanction for these findings’. In the circumstances, and given that Ramaphosa believed that Gordhan’s challenge to the SARS report raised bona fide disputes and ‘was not frivolous’, the President’s lawyers contend that he ‘has reasonably decided to await the outcome of the review application before deciding what action to take in implementation of the remedial action in the report’.

EFF papers on the 'rogue unit' issue are also before the Constitutional Court. According to a City Press report, the party's lawyers argue that in the hundreds of pages of affidavits and arguments filed in court, Gordhan does not point to a specific statutory source of power to establish the ‘rogue unit’ with its extraordinary powers. They are appealing against the interdict preventing implementation of the Public Protector’s report that the SARS under Gordhan, a former commissioner, had unlawfully created a spying unit. The most Gordhan has done, said the EFF in papers prepared by Advocates Tembeka Ngcukaitobi and Jason Mitchell, ‘is rote some generic sections of the Tax Administration Act … which allows SARS to do all that is necessary or expedient to perform its functions properly, including ... to promote proper, efficient and effective tax administration’. ‘That’s far from enough. Parliament does not speak in code; if it intended to give SARS NIA-like (National Intelligence Agency-like) powers, it would have said so.’ The party said: ‘While Mr Gordhan was at its helm, SARS evolved from a revenue-gatherer to a state-funded detective agency, kitted out with all the things a good spy needs’. The case, in which the EFF wants the apex court to overturn the High Court interdict granted to Gordhan in July against Mkhwebane’s report, will be heard on 28 November.

Mkhwebane found SARS was not included as one of the national intelligence structures established in terms of the National Strategic Intelligence Act. Mkhwebane’s remedial action included a criminal investigation and that Ramaphosa take disciplinary steps against Gordhan. However, the sanction has been put on hold by the High Court pending the outcome of a review application to set aside the report. The EFF told the Constitutional Court that other investigative reports, besides that of Mkhwebane, had also found the establishment of the SARS unit under Gordhan, who was then commissioner, to be unlawful. These include the KPMG report and an Inspector-General of Intelligence report. However, notes City Press, KPMG later withdrew some parts of its report and the admissibility of the report of the Inspector-General of Intelligence is subject to another pending hearing in which State Security Minister Ayanda Dlodlo wants the report removed from the record of Gordhan’s review application.