Gordhan remedial action on hold pending judgment
Publish date: 24 July 2019
Issue Number: 4746
Diary: Legalbrief Today
Category: General
The Public Protector has agreed to put her remedial action against Public Enterprises Minister Pravin Gordhan on hold until the Gauteng High Court (Pretoria) rules on the Minister’s bid to interdict the remedial action outlined in her report into the SARS so-called ‘rogue unit’ pending a judicial review, notes Legalbrief. The court reserved judgment yesterday in the urgent application brought by Gordhan, with Judge Sulet Potterill saying she needed a few days to formulate her ruling. A Business Day report notes this was the first application to be heard by the court in the legal battle between Gordhan and Busisiwe Mkhwebane. The Minister is also taking her report on the early pension payout of former SARS Commissioner Ivan Pillay on judicial review. Gordhan’s application was supported by President Cyril Ramaphosa, Pillay and another former SARS commissioner, Oupa Magashule. The two commissioners were also mentioned in Mkhwebane’s report. The Public Protector and the EFF opposed the application. A two-part application was brought by Gordhan after Mkhwebane found he had violated the Constitution when he established an intelligence unit at SARS. She also found that he had deliberately misled Parliament about meeting the controversial Gupta family. Mkhwebane directed Ramaphosa to take appropriate disciplinary action against Gordhan within 30 days and directed National Assembly Speaker Thandi Modise to refer the Minister’s violations to the Joint Committee on Ethics and Members’ Interests for consideration. She also directed that the SA Police Service Commissioner investigate, within 60 days, the conduct of Gordhan, Pillay and other officials involved in the SARS unit, for violating the Constitution and the National Strategic Intelligence Act, and told NPA head Shamila Batohi to finalise the court case against former SARS officials.
Advocate Wim Trengove, for Gordhan, argued that Mkhwebane overstepped her legal jurisdiction in pursuit of the ‘rogue unit’ case, as the Public Protector Act stipulates that the office may investigate matter within two years of occurrence, unless there are compelling special circumstances. According to a Fin24 report, he said Mkhwebane failed to identify any special circumstances after she was asked to do so by the Gordhan's legal representatives. ‘No one has done more harm to the office than the incumbent. She has done more harm to the office than anybody else,’ said Trengove. A second Fin24 report notes he stated that Mkhwebane’s findings relied on an earlier report by Advocate Muzi Sikhakhane, which has been rejected. Sikhakhane’s conclusion was ‘obviously wrong’, he argued, adding that it had been repudiated by the Nugent Commission as well as Judge Frank Kroon, who chaired the SARS Advisory board. Trengove further argued that it would be unlawful for Ramaphosa to discipline Gordhan without affording him a hearing. He said that SARS was within its legal framework when it established the unit tasked with probing illicit economy activity which impacts revenue collection. It was established as part of government’s commitment to fighting organised crime, he told the court. ‘There is no basis, in fact or in law, for the Public Protector’s findings to the contrary,’ said Trengove. Mkhwebane had said that the unit was in breach of section 209 of the Constitution. Trengrove submitted that this was a distortion of the law, and that Gordhan’s application for the review of the report was on the basis that it was ‘biased’ and had ‘ulterior motives’. He also argued that the remedial orders had been used to ‘cast aspersions’ on Gordhan’s character, ‘malign his reputation, and adversely affect his standing as Minister of Public Enterprises’.
Trengove also pointed out the conduct Mkhwebane wanted the Minister to be punished for was something that happened 10 years ago, yet she was insisting that the President and others take action against him within 30 days. ‘In this case, the consideration of separation of powers operates in favour of the suspension of the implementation of the orders,’ he said, according to BusinessLIVE. Trengove also questioned whether the Public Protector had the right to tell the President, the Speaker of the National Assembly, the head of NPA and the police how to exercise their duties. He argued that Mkhwebane had not given Gordhan, or anyone else she made orders against, the opportunity to have their say regarding the remedial action. Trengove said Mkhwebane was obliged to do this in terms common law and under the rationality requirement of the rule of law. He said when Gordhan asked to make representations on the remedial action, Mkhwebane ignored him and just released her report. Trengove told the court there would be no prejudice against the Public Protector if it interdicted the implementation of the remedial action, but did prejudice Gordhan as he was subjected to disciplinary proceedings while he was taking her report on review.
Ramaphosa said the proposed remedial action should happen only after a review application by Gordhan is complete. According to TimesLIVE, the President's counsel, Matthew Chaskalson, told Potterill that the attitude of the President was that he should be involved in the matter following the adjudication of the dispute between Gordhan and Mkhwebane. ‘The legality of the Public Protector's findings is subject to a challenge by the Minister. There is a serious dispute about the legality of the Public Protector's findings,’ Chaskalson said. He added the Public Protector seemed, in her remedial action, to assume that the President had similar disciplinary powers over Gordhan that an employer had over an employee. Chaskalson said Gordhan was not an employee in the ordinary sense as he was there to serve at the behest of the President. ‘It may be that the President has no power to take disciplinary action against the Minister. If that is the case, then the remedial action to take disciplinary action against the Minister may well constitute a power that the President does not have,’ said Chaskalson. He said the decisions that the President needed to take were best taken at the end of the review application.
The Public Protector felt she was ‘being forced to oppose’ Gordhan’s application because of the insults he had thrown at her. Advocate Thabani Masuku, acting for Mkhwebane, told the court that ordinarily the Public Protector would not oppose such an application but, the ‘reasons she has not done this in this case is because the applicant has essentially insulted the Public Protector’. BusinessLIVE notes Masuku was referring to allegations made by Gordhan in his affidavit when he accused Mkhwebane of abusing her constitutional powers, and promoting and supporting corruption and state capture, as well as pursuing corrupt political interests to remove him. Masuku said Gordhan made these allegations without any evidence. The Citizen says he described some of the allegations made by the Minister as ‘scandalous and vexatious’. Gordhan’s submission was an assault on the Office of the Public Protector that would weaken it, rather than strengthen it should it succeed. In the papers, he said, Gordhan referred to Mkhwebane as ‘legally illiterate’, which he said amounted to an attack on her character. According to BusinessLIVE, the Public Protector has asked the court to strike the comments out. Masuku said as a member of the executive, Gordhan had a constitutional duty to uphold and protect the Public Protector’s dignity, which he had not done. He said the allegations made against the Public Protector were damaging. Masuku also argued that the court would be interdicting accountability. He argued the court is being asked to prevent Ministers from being held accountable and to place restrictions on institutions tasked with enforcing the Constitution.
Arguing for the EFF, Advocate Tembeka Ngcukaitobi said the party ‘carries no can for Advocate Mkhwebane’. ‘What it carries a can for is the Office of the Public Protector,’ he said, according to a report in The Citizen. The advocate said Gordhan escaping his remedial action would see him succeeding in escaping accountability. He offered the example of the Social Development Department, saying if remedial action was made against it instructing it to pay social grants, this couldn’t be suspended for months while legal challenges to it were carried out. Ngcukaitobi said the Public Protector often acted on behalf of the everyday person on the street, in what he called ‘Gogo Dlamini’ cases. This, he said, had an important constitutional function, and in future, such ‘Gogo Dlaminis’ would not find justice if Gordhan’s interdict succeeds. Interim orders against the Public Protector should only be granted in the most serious cases, Ngcukaitobi argued, or the Office of the Public Protector’s important role in investigating public malfeasance would be compromised. Ngcukaitobi brought up Gordhan’s alleged meetings with the Guptas, reiterating Mkhwebane’s finding in her report that he misled Parliament by denying he had met with the controversial family. Ngcukaitobi said it was improbable Gordhan forgot he had met the Guptas when he misled the National Assembly. Mkhwebane had the power to decide whether it was intentional or not. As for the so-called ‘rogue unit’, Ngcukaitobi said it was in the public interest to know if Gordhan engaged in spying activities while at SARS, and that this shouldn’t be interfered with through an interdict.
After the hearing, EFF leader Julius Malema told supporters his party would head to the Constitutional Court if Gordhan's application was approved. Malema insisted the fight was not about Mkhwebane but the Chapter Nine institution that she headed. He said it was important that findings and remedial actions set out by it should be implemented because they were binding, notes a News24 report. ‘She (Potterill) must know that if she rules against us, we are petitioning the Constitutional Court directly. We want the Constitutional Court to once more say they don't care about this office.’ Malema said just because the party was supporting the Public Protector in this particular case should not mean it had never disagreed with her before. Malema said it had brought its case to court, supporting the office, because the ‘Constitution was violated’. He added remedial actions needed to be taken by way of Ramaphosa ‘disciplining’ Gordhan. ‘Discipline means a simple thing, he (Gordhan) must be fired. Pravin doesn't deserve to be a Minister.'
