Cyril v Busisiwe; the Rules of Engagement

Once again, it seems South Africa’s future, or at least the reputation of its president, is in the hands of our high courts. This is Version Two of the Public Protector versus the President, only names have changed and those backing the protagonists have swapped sides. The President lost in Version One and the Public Protector emerged the social heroine. This time the dominant discourse is that the real rogue is the Public Protector and the hero is the President. If only it were that simple. This story outlines the legal complexities and obligations of both the President and the Public Protector, ones which the courts will rule on, giving us clarity and precedent on the parameters of their respective powers. Understanding the difference between a court review and an interdict helps in digesting the import of this piece. It cites Mkhwebane insisting that Ramaphosa follow the route taken by Helen Zille in (successfully) interdicting her findings. Ramaphosa says no, the review of her ruling that he should discipline his Minister of Public Enterprises, Pravin Gordhan, for approving former deputy revenue Ivan Pillay’s request to take an early retirement pay-out, is sufficient. That being in place, he cannot violate the Constitutional powers vested in the Public Protector, he says. We’ll see. Story with compliments of the Daily Maverick. – Chris Bateman

Interdict me: Mkhwebane challenges Ramaphosa as the battle enters Round Umpteen

By Marianne Thamm

Public Protector Busisiwe Mkhwebane believes that President Cyril Ramaphosa should interdict her May 2019 report into Public Enterprises Minister Pravin Gordhan if he does not discipline the minister as she has directed.

Business Day revealed on Monday 1 July that Mkhwebane wrote to Ramaphosa on 26 June 2019 warning he was in violation of the Constitution for not implementing her finding that he should discipline Gordhan for approving former deputy SA Revenue Service commissioner Ivan Pillay’s request to take early retirement.

Mkhwebane sent the warning to Ramaphosa as he was putting the final touches on his response to her draft report in which she is likely to have found that he was in breach of the Executive Ethics Act. This is because he provided Parliament with two different answers to explain a R500,000 payment from Bosasa boss Gavin Watson and that he received money which may have been the fruits of money-laundering.

Is she upping the ante in her battle with the president?

“Not at all,” says an aide who provides a legal explanation for her action. The aide, who requested anonymity, said that Mkhwebane believed that Ramaphosa should interdict her report into Gordhan – which the minister has requested be reviewed by the High Court for what he believes to be many dodgy findings. The Public Protector believes that Ramaphosa is duty-bound to implement her findings even if a report is under court review; it can only be stayed (suspended) if the report is under appeal.

“In our understanding, there is a distinction between an appeal and a review,” said the official. Former Western Cape premier Helen Zille has twice interdicted Mkhwebane to secure a court order to stay implementation even before she applied for court reviews of reports by the Public Protector.

In January 2018, Zille secured an interdict against the implementation of a report which found that she had unduly benefited her son Paul Maree’s skills programme while serving as premier and thereby opened herself up to a conflict of interest charge. In July 2018, Zille interdicted Mkhwebane from implementing a report which found that she should be disciplined by the Speaker of the Western Cape Legislature for her 2017 tweeted threads on colonialism’s positive legacy, sent while she had been in Singapore.

Asked if it did not appear as if the Public Protector was picking a fight with Ramaphosa, the official said: “It’s vital (to get an interdict) to avoid the risk of (others) ignoring the Public Protector and of perpetuating impunity.” The Public Protector is relying on a Supreme Court of Appeal judgment which found that it “is well settled in our law that until a decision is set aside by a court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked”.

Ramaphosa holds a different view, which he has communicated to Mkhwebane. According to his office, “President Ramaphosa said that having considered the Public Protector’s findings against minister Gordhan, as well as the minister’s challenges to those findings in his review application, it would be inappropriate to take disciplinary action against minister Gordhan at this point”.

“The president explained that there was a dispute pending before the High Court over the legality of the findings on which to base the recommended disciplinary action. Furthermore, this dispute legally challenged the president’s alleged power to exercise such disciplinary action,” Presidency spokesperson Khusela Diko said in a statement on Monday 1 July.

Mkhwebane’s aides insist that she is acting impartially and independently. They say that Gordhan’s approval of a request for Pillay to take early retirement (in order to cash in his payment to pay for his children’s university fees) and then to immediately be rehired into his job on contract, crowded out opportunities for others who may have sought the role at the revenue service.

Officials who are critical of Mkhwebane’s conduct say that she is exercising a political vendetta on behalf of one faction in the ANC. They allege that Mkhwebane is an ally of ANC secretary-general Ace Magashule and is tied to a grouping that includes Deputy Minister of Water Affairs and Sanitation David Mahlobo, as well as ANC MP Bongani Bongo. The Public Protector’s office has denied this. DM