Busisiwe Mkhwebane: Time up for ‘rogue’ prosecutor, nailed for Gordhan attacks?

On Monday, judges of the Pretoria High Court were merciless in their ruling against the report compiled by public protector Busisiwe Mkhwebane on Minister of Public Enterprises Pravin Gordhan and the Sars rogue unit.

Judges Annali Basson, Selby Baqwa and Leonie Windell stated in their 111-page ruling that Mkhwebane was biased and compiled her report with a view to make adverse findings against Gordhan.

According to the judges, Mkhwebane’s conclusion that Gordhan had established an illegal unit was unsubstantiated and based on discredited reports. The judges went as far as recommending the Legal Practice Council review Mkhwebane’s report, as she had attacked Pretoria High Court Judge Sulet Potterill after he reviewed her original report.

“Apart from the fact that the personal attack on the learned Judge is shockingly inappropriate and unwarranted, the Public Protector’s reading and interpretation of paragraph 2.3(a) of the Executive Ethics Code is wrong in law: The Code prohibits members of the Executive from “wilfully” misleading the legislature.

“The wording of the Code is clear and does not contain a provision that an ‘innocent’ mistake constitutes a contravention of the Executive Ethics Code. To claim that Potterill J ‘deliberately omitted the words ‘inadvertently mislead’ from the actual Code, is simply astonishing. Besides being a Public Protector, Advocate Mkhwebane is officer of this court and owes it a duty to treat the Court with the necessary decorum. She not only committed an error of law regarding the Code but was also contemptuous of the Court and Judge Potteril personally,” said the Judges.

The Pretoria High Court also found that:
  • The public protector was biased against Gordhan and Ivan Pillay who was expressly named in her report
  • She had approached her investigation with an intention to purposely rule against Gordhan and Pillay.
    “Having regard to the manner in which the Public Protector simply dismissed out of hand and completely ignored and irrationally discarded hard facts and clear evidence, it is clear that she approached her investigation with a preconceived notion, determined to make adverse findings against Minister Gordhan and Mr Pillay, thereby promoting the false rogue unit narrative.”
  • Mkhwebane had misled the court.
    “What makes this reprehensible conduct worse is that the remarks by Adv Mkhwebane were made under oath, when she ought to have known about the falsity thereof. This clearly held the possibility of misleading this court. This is conduct unbecoming of an advocate and officer of this court. She owes Judge Potteril an apology,” the Judges said.

Mkhwebane has also been ordered to pay the costs of Gordhan and Pillay at 15% of her personal salary.

Meanwhile Mkhwebane faces another obstacle as parliament is set to hear a motion of no confidence in her office and capabilities. The Western Cape High Court denied her leave to appeal its judgment. In October, the public protector filed an application to challenge the ruling on her fitness to hold office.

Mkhwebane’s application has been opposed by the National Assembly speaker, the first respondent, the President, the second respondent and the Democratic Alliance. It was dismissed with costs as the Court stated it could not intervene with a serious process which should be allowed to test whether she is fit to not to hold her position. According to Mkhwebane, this could mean she would be suspended as the parliamentary inquiry is underway.

Read the full findings of the Pretoria High Court case between Pravin Gordhan and public protector Busisiwe Mkhwebane below

On Mkhwebane’s own admission, should she be removed from her role it could have a negative impact on her career. In her court papers filed against parliament’s inquiry, she stated it would also affect her personal circumstances.

“In dealing with irreparable harm, the court has to counterbalance the harm to be suffered by the applicant (Mkhwebane) if the interim interdict is not granted.

“The approval of the motion itself is problematic for me as it feeds to this fable narrative, which malign me as being incompetent and dishonest,” she said.

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