President Cyril Ramaphosa has entered the fray in the battle between Public Enterprises Minister Pravin Gordhan and Public Protector Busisiwe Mkhwebane.
On Monday, he filed urgent court papers against the public protector, asking the court to declare that he had complied with the remedial action she directed in her recent report about the pension pay out of former deputy South African Revenue Service (Sars) commissioner Ivan Pillay.
Ramaphosa’s application comes after correspondence between the two became increasingly tense with Mkhwebane saying Ramaphosa was on the verge of precipitating a “constitutional crisis” and accusing him of conduct that was “ostensibly contemptuous” of her office.
In his court papers, Ramaphosa admonished her for trying to dictate to him and badgering him.
The report at issue concerned the approval by Gordhan, when he was finance minister, of an early pension payout for Pillay, which she had found to be irregular.
In her report, Mkhwebane directed Ramaphosa to take note of her findings and take appropriate disciplinary action against Gordhan. However, Gordhan has taken the case to court on review, prompting the president to await its outcome before taking disciplinary steps.
In his affidavit, Ramaphosa said it was “unfortunate” that he had to bring the case to court — “in circumstances where I believe it is wholly unnecessary” and that the case was brought as a “measure of last resort”.
However, it was necessary to obtain legal certainty on what his obligations are — as the president believed he had complied with Mkhwebane’s report, but she believed he had not.
In the context of “the political climate” the case “will unfortunately feed into the unfounded narrative that the State (and its institutions) is at war with itself,” Ramaphosa said.
“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.” However this case was “not a political matter, but solely a legal one,” he explained.
Ramaphosa said he believed he had complied with Mkhwebanes’s order because he had indeed taken note of the findings in this report — as directed. And, since the nature and the timing of the disciplinary action was left to his discretion, the appropriate course was to await the outcome of the court case brought by Gordhan. He informed her of all of this in the implementation plan — as she had directed him to provide, he said.
“I accept the binding nature of the Public Protector’s reports and remedial actions. I accept that the Report is under review but that this does not stay the implementation of the remedial action, in the absence of a court order,” he said.
In her correspondence, Mkhwebane said she deduced from his letter that he had decided not to implement her remedial action, that this was a “foregone conclusion as [wa]s merely based on [the Minister’s] assertions”.
In a later letter, the public protector said that Ramaphosa was willfully not complying with her remedial action, had acted in a way that was “ostensibly contemptuous” of her office and was breaching his constitutional duties.
Mkhwebane implored the president to take “better legal advice” to avert a constitutional crisis and “take the country many steps backward (i.e. to the pre-Nkandla judgment days)”. If he did not comply it would set a bad precedent, she added.
She demanded implementation “as a matter of urgency and preferably by no later than Friday 12 July 2019”.
In his affidavit, Ramaposa said this time limit was “contrary to the express terms of the remedial action. This constitutes an impermissible attempt to revise the report”.
He then instructed to the state attorney to send her a letter.
Ramaphosa said his disciplinary action, which could take any number of forms, had to be rational — and what was appropriate would depend on what the review court found.
“With complete deference to the Public Protector …. The president ought not to be dictated to or badgered, on matters that lie within the exclusive heart and preserve of executive power”.