Incumbent Public Protector Busisiwe Mkhwebane had done more damage to the office of the public protector than anyone else, said counsel for Pravin Gordhan, Wim Tengove SC, in court on Tuesday.
Trengove was replying to an argument made by Mkhwebane’s counsel, Thabani Masuku SC, that the public enterprises minister had insulted Mkhwebane in his court papers, and by doing so had breached the Constitutional injunction to uphold and protect the dignity of the Public Protector.
The case — heard in the Pretoria high court on Tuesday — was Part A in Gordhan’s bid to set aside the Public Protector’s “rogue unit” report. In it, she found that Gordhan had misled Parliament, had authorised the unlawful creation of an investigation unit within the South African Revenue Service (Sars), and that the unit had conducted unlawful and unauthorised spying operations.
In Part B of the case, the court will decide whether to set aside the report. In the meantime Gordhan asked the court in Part A to urgently suspend the remedial action directed by Mkhwebane. The remedial action included that President Cyril Ramaphosa take appropriate disciplinary action against Gordhan within 30 days of her report. In this he was supported by Ramaphosa.
Up until that point in Trengove’s reply, the damning judgment of the Constitutional Court, handed down just the day before, had barely been mentioned in the interdict application. However Masuku centred his argument around the allegations made by Gordhan in his papers that Mkhwebane had been biased against him and had acted with an ulterior purpose.
Masuku said Gordhan had accused the public protector of promoting state capture and of corruption, and had even called on Parliament to consider taking action against the public protector.
“When you accuse the Public Protector of a wish to defeat our constitutional project, it’s a serious allegation, it should never be made without evidence,” he said. He said that, while there were good legal grounds to oppose the interdict, Mkhwebane would not have done so had it not been for the personal insults by Gordhan.
But Trengove said that it was important to distinguish the office of the Public Protector from its incumbent. Gordhan had a deep respect for the office, he said. Not only had Mkhwebane been accused of lacking integrity, but the Constitutional Court had upheld those accusations, he said, and referred the court to some of the most scathing parts of the ConCourt’s judgment.
However, Part A did not need to determine that aspect, said Trengove. He said all the court had to decide for now was whether to enforce the remedial action, or await the outcome of Part B.
Ramaphosa’s counsel, Matthew Chaskalson SC, added that if the Public Protector’s remedial action was to be immediately implemented it would mean that Ramaphosa would have to firstly hear Gordhan, then make his own preliminary decision and then he would have to submit a plan to the public protector.
If she were to approve, he would have to implement the plan. If she did not approve, he would have to reconsider and resubmit – “and now it must all have been done within 30 days,” said Chaskalson.
Chaskalson said that, importantly, Gordhan had raised as an argument for Part B that the president did not have disciplinary powers over Gordhan – except to hire or fire him from cabinet. “If that is the case, the remedial action may constitute an attempt to direct him to do what he has no power to do,” said Chaskalson.
Counsel for the Economic Freedom Fighters, Tembeka Ngcukaitobi, said that the courts should treat interim interdicts differently when it came to the Public Protector. He said the EFF had sought to join the case in the public interest to protect the office of the Public Protector.
He said the court had to balance two important competing constitutional principles: the rule of law and executive accountability.
Citing the Constitutional Court’s judgment in the OUTA e-tolls case, Ngcukaitobi said the Public Protector was a constitutional institution exercising original constitutional powers. When it came to the Public Protector, the right balance would be to interdict remedial action in exceptional circumstances only and where there was a “very, very” strong case (and not just an arguable case) against the public protector. This was not such a case, he said.
But Trengove said that the OUTA judgment had set out the requirements for an interim interdict — and that these had all been met by Gordhan in his application.
Judgment was reserved.