President correct to delay Gordhan action
• Constitutional Court rejects argument by EFF and public protector that interdicts hinder Mkhwebane’s work
The apex court has found that President Cyril Ramaphosa did the right thing by not taking immediate disciplinary action against public enterprises minister Pravin Gordhan after he took the public protector’s report on the so-called SA Revenue Service rogue unit on review.
The apex court has found that President Cyril Ramaphosa did the right thing by not taking immediate disciplinary action against public enterprises minister Pravin Gordhan after he took the public protector’s report on the so-called SA Revenue Service (Sars) rogue unit on review.
The Constitutional Court on Friday delivered judgment in a matter that has been fraught with political controversy since the report was first released by public protector Busisiwe Mkhwebane in which she probed the establishment of the unit at Sars, and found that Ramaphosa should take action against the minister.
In her Sars report, Mkhwebane found that an investigating unit at the tax agency established in 2007 — later referred to in media reports as a rogue unit — was unlawfully formed and had conducted illegal intelligence gathering operations.
She ordered Ramaphosa to take action against Gordhan over his alleged role in the establishment of that unit and also ordered the National Prosecuting Authority (NPA) to investigate possible violations of the constitution and intelligence legislation.
But Ramaphosa did not do so, given that Gordhan had taken the report on judicial review, as the remedial action of the public protector was binding until set aside by a court.
After the high court in Pretoria interdicted the remedial action last year, Mkhwebane and the EFF appealed to the apex court, arguing that there needed to be an even stricter test to determine when the public protector can be interdicted, as it hindered her from fulfilling her constitutional duties if she was constantly interdicted.
The Constitutional Court, however, did not believe this was the case, and the argument was rejected.
In the concluding remarks in the judgment penned by then acting chief justice Sisi Khampepe, the court emphasised that neither the courts nor the office of the public protector was above scrutiny, but that such scrutiny should be done in good faith and be based in fact.
Dealing with how Ramaphosa handled the matter, the court said: “This was the correct approach by the president as it is in line with the decision” of the Nkandla judgment.
It added that Ramaphosa had undertaken to act as he was directed to do, should the report withstand judicial review.
“The interim interdict serves an important purpose — it suspends the binding effect of the public protector’s remedial action until finalisation of the review proceedings. This is not an act that undermines the public protector. Rather, it preserves the interdict-applicant’s rights while showing due respect to the binding powers of the public protector,” the court held.
The powers of the office of the public protector have become an increasingly controversial issue since Mkhwebane
took office. She has lost a raft of court judgments in which the courts have been scathing about the way she manages investigations.
Friday’s Constitutional Court judgment also dealt with another issue that has frequently arisen in litigation: the question of personal costs orders against Mkhwebane.
This type of costs order is used as punishment against a litigant. While Mkhwebane has been ordered to pay costs in her personal capacity, which was upheld by the apex court last year, it did not withstand scrutiny this time.
The court was clear that one could not issue such a punitive costs order against a person if there was no reason given for why it was necessary, and as a result of the high court’s lack of reasoning for it, overturned the costs order.
It said a personal costs order cannot be granted in the abstract and the facts must plainly support an order of this nature.
“A court would be derelict in its duties if it imposed a personal costs order where the facts do not justify that. Similarly, a court would be derelict in its duties if it failed to furnish the reasoning for imposing a personal costs order,” the court said.
While the remedial action ordered remains interdicted after the judgment, the actual review of the report has not yet been heard.
IT PRESERVES THE INTERDICT APPLICANT’S RIGHTS WHILE SHOWING DUE RESPECT TO THE BINDING POWERS OF THE PROTECTOR
A COURT WOULD BE DERELICT IN ITS DUTIES IF IT IMPOSED A PERSONAL COSTS ORDER WHERE THE FACTS DO NOT JUSTIFY THAT