Cape Argus

Public protector ‘ducking another scathing ruling’

Mkhwebane won’t challenge President Ramaphosa’s interdict against her Bosasa report

- BALDWIN NDABA baldwin.ndaba@inl.co.za

PUBLIC Protector Busisiwe Mkhwebane’s decision not to challenge President Cyril Ramaphosa’s interdict against her Bosasa report was allegedly aimed at avoiding another scathing High Court ruling against her.

More than a week ago, the North Gauteng High Court interdicte­d the implementa­tion of Mkhwebane’s remedial action against Public Enterprise­s Minister Pravin Gordhan after finding she had failed to provide Gordhan with an opportunit­y to respond to her prior to publishing her findings on the so-called “Sars Rogue Unit” report.

Now, Ramaphosa has also filed an urgent interdict, arguing that Mkhwebane also failed to allow him an opportunit­y to comment on her preliminar­y findings before releasing her Bosasa report in July.

Insiders, who asked to remain anonymous, say Mkwebane’s decision not to challenge Ramaphosa was to avoid the legal backlash she received over Gordhan’s applicatio­n.

The urgent court action, due to be heard on Monday, followed Mkhwebane’s ruling that Ramaphosa had contravene­d the Members’ Executives Ethics Act after he allegedly misled Parliament over a R500000 donation he received from Bosasa for his presidenti­al campaign before the ANC’s elective conference in December 2017.

This week, Mkhwebane’s legal team wrote to the state attorney indicating her intention not to oppose Ramaphosa’s interdict pending the outcome of his review applicatio­n.

Yesterday, Mkhwebane’s spokespers­on Oupa Segalwe said she was preparing to oppose the final review applicatio­n.

Mkhwebane’s latest U-turn came after she insisted in court and correspond­ence to Ramaphosa in relation to two matters involving Gordhan that her remedial actions were binding until set aside by the court.

When questioned about this, Segalwe said: “She is not backing down as suggested by some media. The non-opposition is based on the fact that the review will be conducted on an expedited basis. She will still oppose the review of the report,” Segalwe said.

But insiders said Judge Sulet Potterill’s ruling may have influenced Mkhwebane’s decision not to oppose Ramaphosa’s applicatio­n to interdict her report.

In her ruling, Judge Poterill said the Public Protector Act (PPA) rendered it mandatory for Mkhwebane to afford any person an opportunit­y to respond to adverse findings.

“It is argued that even on a narrow interpreta­tion this would include an opportunit­y for submission­s prior to a penalty,” Judge Potterill said.

She granted Gordhan the interdict saying he had been denied the common-law principle of audi alteram partem (listen to the other side).

Eight days before Judge Potterill’s ruling on July29, Ramaphosa addressed the nation and declared his intention to challenge Mkhwebane’s report.

“The findings are wrong in law, are irrational and, in some instances, exceed the scope of the powers of the public protector,” he said.

“Furthermor­e, in failing to provide me with an opportunit­y to comment on proposed remedial action, the public protector has violated provisions of the Public Protector Act, the Constituti­on and principles of common law.”

Meanwhile, judgment is expected to be delivered today on Ramaphosa’s applicatio­n to interdict Mkhwebane on the remedial action on the implementa­tion of disciplina­ry action against Gordhan, for allegedly paying an early pension payout to former SA Revenue Service deputy commission­er Ivan Pillay in August 2010.

 ?? | JACQUES NAUDE African News Agency (ANA) ?? PUBLIC Protector Busisiwe Mkhwebane briefs the media at her offices.
| JACQUES NAUDE African News Agency (ANA) PUBLIC Protector Busisiwe Mkhwebane briefs the media at her offices.
 ??  ?? PRESIDENT Cyril Ramaphosa
PRESIDENT Cyril Ramaphosa

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