/ 19 July 2019

Courts to test the power of the protector

Courts To Test The Power Of The Protector
Public Protector Busisiwe Mkhwebane (David Harrison/M&G)




The gloves came off this week in the legal battle between public protector Busisiwe Mkhwebane and the public enterprises minister, Pravin Gordhan. There were bitter exchanges between the two in affidavits and Mkhwebane even threatened contempt proceedings against Gordhan.

The Economic Freedom Fighters also sought to enter the fray, and President Cyril Ramaphosa has in one case given his support to Gordhan and laid bare his own dispute with Mkhwebane after the two could not agree on whether he had implemented her remedial action.

There are now three separate court cases on the go, all involving the same four parties: the public protector, Gordhan, Ramaphosa and former South African Revenue Service (Sars) deputy commissioner Ivan Pillay. One is Gordhan’s application to set aside Mkhwebane’s report into Pillay’s early pension payout.

The second is the urgent case over her “rogue unit” report, also by Gordhan. The third, also urgent, was brought by Ramaphosa, asking the court to declare that he had indeed complied with Mkhwebane’s remedial action in the pension payout case.

The urgent part of the “rogue unit” case is expected to be heard in the Pretoria high court on Tuesday. Gordhan ultimately wants the court to set aside the public protector’s entire report on a number of grounds. But in the meantime he wants the courts to put on hold the remedial action Mkhwebane directed Ramaphosa to implement — until the review has been finalised.

The remedial action includes a direction to the president to take disciplinary action against Gordhan within 30 days of her report.

Emotions are running high in this case. Each party has accused the other of conducting political campaigns against it.

Mkhwebane’s spokesperson Oupa Segalwe said that, to his knowledge, the public protector has never brought contempt proceedings under the Public Protector Act. There have been instances when it’s come close, he said, such as when Kebby Maphatsoe accused former public protector Thuli Madonsela of being a CIA spy. Maphatsoe was given an ultimatum to retract and apologise or substantiate his claim. The former defence and military veterans deputy minister withdrew his claim and apologised.

The increasingly vitriolic accusations and counter-accusations — unusual in litigation between organs of state — have dominated headlines all week. But underneath it all is another terrain of battle: a whole new area of law must be developed because the courts have clarified that the remedial action of the public protector is binding, unless and until it is set aside by a court.

For most of former public protector Thuli Madonsela’s incumbency, the legal status of remedial action directed by the public protector was unclear; most people viewed her remedial action as recommendations and it was often simply ignored.

This has now changed because of the seminal judgments of the Supreme Court of Appeal and the Constitutional Court, in the famous Nkandla decision, towards the end of Madonsela’s tenure.

These judgments mean that, in some ways, the public protector is now more powerful than a high court: there is no appeal against a public protector report, only a review. A review looks at how the decision-maker came to a decision, not whether the decision is right or wrong (which is what an appeal would look at).

Another (crucial) difference between an appeal and a review is that taking a court order or decision on appeal usually suspends the order or decision. Not so with a review application.

For a while there was a public debate on whether the institution of a review application of the public protector’s remedial action automatically suspended it. Yet this is now seemingly not contentious: it does not. The president said as much in his court papers, and Gordhan has recognised this by the fact that he has sought urgently to interdict the remedial action.

The Supreme Court of Appeal last year also decided that the public protector’s remedial action does not amount to administrative action (decisions taken by government officials), which is reviewable under the Promotion of Administrative Justice Act. It is reviewable under the principle of legality, the appeal court found.

The bar for successfully reviewing under the principle of legality is supposed to be set much higher than for a review under the Promotion of Administrative Justice Act, making the public protector even more powerful.

The legal question that will likely dominate the urgent case to be argued on Tuesday in the Pretoria high court is what it must take to get an interdict against remedial action, pending the finalisation of the review.

In one of her letters to Ramaphosa leading up to his court action this week, Mkhwebane says that, if he doesn’t want to implement action, he must get an interdict from court. “Such orders are sought and obtained daily in our courts in respect of review applications targeted at ordinary administrative action, let alone the remedial action of the public protector, which almost ranks as a court order in its binding effect,” she says.

But in her answering affidavit to Gordhan in the “rogue unit” case, she says that an interim interdict should only be granted in exceptional circumstances. This is because “the suspension of remedial actions imposed by the public protector in essence stops a sanctioned constitutional intervention intended to promote efficient government and enhance public trust in the ability of institutions to comply with their administrative mandates”.

Gordhan had to show the exceptional circumstances that warranted it, said Mkhwebane. He “has not done so. The basis on which he seeks a suspension of the remedial action is some unarticulated prejudice that he believes he will personally suffer.”

In his application, Gordhan said he would suffer irreparable harm.

“The erroneous findings and remedial action by the public protector have had an enormous personal and political impact on me. They have detrimentally affected perceptions of my character, maligned my reputation and adversely affected my standing as minister of public enterprises.”

He said that if the interdict was not granted he would be subjected to a disciplinary process and a criminal investigation — based on an unlawful report. If the court finds that the report was bad, this will be academic, because the remedial action has already been implemented.

Mkhwebane says this is not enough to warrant an interdict. She adds that granting the interdict would prevent the president, and the others she has directed to take action, from taking any steps against Gordhan —and would place “unlawful limitations on the president to take steps against a member of the national executive for any reasons”, says the affidavit.

All this is complicated legal terrain. It is not made easier by how political power struggles seem to have coalesced around Mkhwebane’s office and the questions swirling around her integrity — a potentially crucial judgment from the Constitutional Court on this score has been pending since November last year.