Ramaphosa goes to court over protector
• President asks high court to stop Mkhwebane’s remedial actions against Pravin Gordhan
In a dramatic escalation, President Cyril Ramaphosa has turned to the courts to stop the public protector’s remedial actions against public enterprises minister Pravin Gordhan.
The president said in papers filed at the high court in Pretoria that Gordhan’s legal challenge to the first of two adverse reports made against him by public protector Busisiwe Mkhwebane was not “frivolous”.
Ramaphosa had waited for the outcome of that challenge before taking disciplinary action against the minister “to avoid taking an irrational and unreasonable decision”, the president said in papers filed at the court.
Mkhwebane accused him of failing to uphold the constitution by not implementing her remedial action against Gordhan after she found he had granted an unlawful early retirement to former SA Revenue Service (Sars) commissioner Ivan Pillay.
Ramaphosa's challenge comes with Mkhwebane under intense scrutiny following recent court decisions to set
aside some of her reports, prompting critics to question her objectivity and competence.
In May, the high court in Pretoria reviewed and set aside her report on the Gupta-linked Vrede dairy farm project and declared it unconstitutional and invalid.
The constitutional court is still to rule on a personal costs against her after a scathing high court ruling on her investigation of an apartheid-era loan the SA Reserve Bank gave to Bankorp, with the judges saying she did not understand her job.
Mkhwebane has also had to fend off accusations that she has abused her office by involving it in factional battles within the ANC, suspicion that has been bolstered by her enthusiasm to investigate Gordhan, a key ally of Ramaphosa in his attempt to clean up state institutions ravaged by alleged state capture during former president Jacob Zuma’s nine years in office.
The opposition EFF, which has made Gordhan a hate figure, has championed her and demanded that Ramaphosa fire Gordhan.
Mkhwebane ordered Ramaphosa to take appropriate disciplinary action against Gordhan and to furnish her with an implementation plan in 30 days.
Ramaphosa is seeking an order stating that he has complied with Mkhwebane’s remedial action – by advising her through a remedial plan, demanded by her, that he would wait for the outcome of Gordhan’s legal action before taking the “appropriate disciplinary action” she ordered him to take.
The president said he had alternatively sought an interdict to stay the implementation of Mkhwebane’s remedial action, pending Gordhan’s review of her report, as a “measure of last resort”. He stated it was “unfortunate that it was [at all] necessary to bring this application”.
“The president issuing an application [in circumstances where I believe it is wholly unnecessary] to interdict the implementation of remedial action(s) of the public protector, will unfortunately feed into the unfounded narrative that the state [and its institutions] is at war with itself.
“It is a constitutionally unpalatable state of affairs to have the public protector, the minister [and now, the president] being embroiled in litigation against each other.”
He further stressed that there was no controversy that arose in this application.
“It is not a political matter but solely a legal one”.
In May, Mkhwebane found that Gordhan had “irregularly approved the retirement of Mr Ivan Pillay with full retirement benefits and his subsequent retention at Sars”.
“There was no retirement in fact and in law. If there was no retirement in fact and in law, it can be concluded that Mr Pillay was not entitled to early retirement with full pension benefits under any statutory provision,” she said.
Gordhan is now challenging that report, which he contends is politically motivated and replete with errors in law and fact.
Ramaphosa contends that he could not act against the minister given that he was challenging the findings and remedial action issued against him by Mkhwebane, but says her accusations that his failure to do so amounted to a potential constitutional violation had forced his hand.
“The president has been accused by the public protector of acting contemptuously, bordering on being in breach of his constitutional obligations. This has serious reputational and legal ramifications for the president and the rule of law,” Ramaphosa states.
He maintains the “primary purpose” of his interdict application is “to obtain legal certainty regarding the president’s obligations [and thus, the public protector’s expectations] arising out of the public protector’s investigation and report into allegations of maladministration and impropriety in the approval of Mr Ivan Pillay’s early retirement with full pension benefits and subsequent retention by the South African Revenue Service”.