Mkhwebane gets another legal hiding – Gordhan’s interdict

The remedial orders of the Public Protector against Public Enterprises Minister Pravin Gordhan, are “vague, contradictory and nonsensical”.

Published on:

29 Jul 2019, 4:19 pm

The remedial orders of the Public Protector against Public Enterprises Minister Pravin Gordhan, are "vague, contradictory and nonsensical" and the basis of her opposition to his interdict, deeply flawed. Uncannily close to the assessment by Constitutional law scholar, Pierre de Vos on Biznews last week, Judge Sulet Potterill rejected Busisiwe Mkhwebane's argument that Gordhan's labelling of her as 'incompetent, irrational and negligent' in her duties undermined her independence, impartiality and effectiveness. The judge said basing her legal opposition to Gordhan's interdict on this alleged 'undermining' was misconstrued. Gordhan's urgent application relied, (among several other more germane things), on the irreparable reputational harm he'd suffer should he not interdict her. Failure to do so would have put him at the mercy of Mkhwebane's time-constrained flurry of orders to the Minister of Police, the Speaker of the House, the National Director of Public Prosecutions and the President. Mkhwebane wanted them to sanction Gordhan for his "criminal' role in the so-called SARS rogue unit. Judge Potterill said it 'defied all logic' for Mkhwebane to proceed with remedial action when her report as the basis for such remedial action was the subject of a judicial review. The Public Protector and her co-respondent, the EFF, were ordered to pay full costs. The judicial score against Mkhwebane? Six-Zero and counting. A desperate political agenda or incompetence? I wouldn't pick it. – Chris Bateman

South African court sides with Gordhan in new blow for ombudsman

By Amogelang Mbatha and Mike Cohen

(Bloomberg) – South Africa's Public Enterprises Minister Pravin Gordhan won the first round of his battle with the nation's anti-graft ombudsman when the High Court suspended her directive that he should be censured pending a legal review of adverse findings she had made against him.

Public Protector Busisiwe Mkhwebane ruled on July 7 that Gordhan misled parliament, violated the executive ethics code and oversaw an illegal intelligence unit at the national tax agency when he was finance minister, and ordered President Cyril Ramaphosa to discipline him. While Gordhan appealed the findings in court, Mkhwebane said that didn't suspend the remedial action – an argument Judge Sulet Potterill dismissed.

Some of the disciplinary measures ordered by Mkhwebane were "vague, contradictory or nonsensical," and would cause Gordhan irreparable harm if implemented, Potterill said at a hearing in Pretoria, the capital, on Monday. "There is no harm to the Public Protector if the remedial action is suspended pending review" and it "defies all logic" that should they be implemented now, she said.

The ruling is the latest blow to Mkhwebane, who has had several of her findings overturned by the courts, been found by the Constitutional Court to have lied under oath and been accused of siding with Ramaphosa's opponents in a power struggle within the the ruling party. The case will also serve to strengthen Ramaphosa, who is himself contesting her findings that he intentionally misled lawmakers about a campaign donation.

Mkhwebane denies that she is playing politics and accuses her critics of seeking to undermine her investigations.

Potterill ordered that the Public Protector's office and the Economic Freedom Fighters, an opposition party that joined the lawsuit against Gordhan, to pay the legal costs.

Media statement on behalf of Pravin Gordhan:

On behalf our client, Min Pravin Gordhan, we welcome the judgment today by the High Court, Gauteng Division, Pretoria and its important affirmation of our client's rights to procedural fairness.
In terms of the judgment, our client succeeded in establishing no fewer than seven prima facie rights in reliance of which the remedial actions by the Public Protector (PP) must be suspended, pending a judicial review.
The PP's mandate is to protect the public from any conduct in government or public affairs that can result in malfeasance, impropriety, prejudice, unlawful enrichment or corruption. Our client maintains that he has great respect for the Office of the PP. However, he doubts the competence, integrity, legal literacy and constitutional grasp of its incumbent, of her powers, duties and functions.
The Constitutional Court's judgment of last week Monday, found that Adv Busisiwe Mkhwebane's flawed investigation, dishonesty and bad faith, fell far short of the high standards required of her office.
The High Court today ordered costs against the Public Protector and the EFF for opposing our client's urgent application. Their arguments were found to be "baseless… with both the EFF and the PP and her office not seriously attacking the requirements necessary… and accordingly unsuccessful litigants should carry the costs".
The judgment confirms that the PP failed to explain on what basis she exercised jurisdiction over complaints against our client going back as far as 2007, and what 'special circumstances' she relied on – a requirement of the PP Act – to entertain complaints about events that occurred more than two years ago.
In Paragraph 46 and 51 of the judgment, the court finds: "… This court had to study the report and remedial orders in order to ascertain whether in fact there is irreparable harm to Gordhan. Much of the orders are vague, contradictory or nonsensical… "…The harm to Gordhan speaks for itself. The harm would be irreparable if the interdict is not granted. Being prosecuted, disciplined and investigated most certainly constitutes harm and the harm may be irreparable and irreversible by the time the review application is heard, especially so if the review application is successful…. There is no harm to the PP or her office if the remedial action is suspended pending review…This matter constitutes a clear case where judicial interference is warranted…"
In respect of the arguments proffered by the EFF and the PP that they should not pay the costs, The Court further held that: "… The EFF and PP has [sic] attempted to label the litigation as constitutional, but the character of the litigation before me is not of parties claiming their constitutional rights, but rights to prevent a harm flowing from a report that is challenged. It is conceded on behalf of the PP and her office that this is normal practice; to now assert that suspension threatens the office of the PP as a chapter 9 institution is far-fetched, ingenious [sic] nor substantive and does not raise truly constitutional considerations…"
This judgment confirms the need for the expeditious determination of the main review application.
Tomorrow when counsel for President Cyril Ramaphosa argues another similar urgent application against the PP's remedial action directed to our client in relation to the PP's first investigation report. Our client is a respondent in that application.
The judgment confirms that a review of the PP's Report is no more than a constitutional entitlement that all South Africans enjoy including Min. Gordhan. It is precisely so because the Office of the PP is a constitutional institution under the rule of law. The Office of the PP ought to await the outcome of court review applications and must welcome the court's scrutiny of its work.