Riyaz Patel
Public Protector Busisiwe Mkhwebane has filed an application at the Constitutional Court for leave to appeal a High Court ruling which suspended the implementation of remedial action against Public Enterprises Minister Pravin Gordhan.
Last month, Gordhan secured an urgent interdict to suspend the remedial action ordered in the South African Revenue Service (SARS) so-called ‘rogue unit’ report against him while he seeks a full judicial review.
President Cyril Ramaphosa filed a supporting affidavit in relation to Gordhan’s application seeking to suspend the enforcement of remedial action recommended by the Public Protector.
In the papers filed with South Africa’s highest court, Mkhwebane argues that the High Court order was “granted erroneously and is bad in law” and that it will “create unbearable conditions for the effective functioning of the Public Protector.”
She wants the order to be set aside.
In a report released on July 5, Mkhwebane found that Gordhan had violated the Constitution and the Executives Ethics Code, in a report that related, among other things, to the establishment of the so-called ‘rogue unit’ at SARS in 2007. Gordhan was the SARS Commissioner at the time.
She recommended that Ramaphosa discipline Gordhan within 30 days. She further directed the police and National Prosecuting Authority (NPA) to consider criminal charges against him.
She contends that the importance of her application is “self-evident” and that it’s in the interest of justice that an urgent direct appeal is granted in her application.
She further states the ruling has the power to potential to “strip the Public Protector of the support and assistance necessary to promote constitutional governance.”
“Orders suspending my remedial actions against the respondents, have the effect that responsiveness, transparency and accountability in the exercise of state powers is suspended,” she further argues.
Mkhwebane has suffered numerous legal bruises for her reports recently. Last month, the Constitutional Court upheld the personal costs order against Mkhwebane, in an appeal of a matter based on her report on apartheid era funding of Bankorp, now part of Absa, by the Reserve Bank.
The court agreed with the North Gauteng High Court that her Absa/Bankorp investigation was flawed, and that Mkhwebane was not honest during her investigation.
Mkhwebane, however, takes issue with what she terms as the “perplexing” personal cost order in the Gordhan case.
“This is perplexing considering the fact that none of the parties in the application sought any such cost order,” reads her affidavit.
