The Economic Freedom Fighters (EFF) have once again entered the fray in support of the public protector, this time in the legal stand-off between Busisiwe Mkhwebane and Cyril Ramaphosa.
An urgent court case, to be heard on Tuesday in the Pretoria high court, was brought by Ramaphosa after an increasingly heated exchange of correspondence with the public protector. At its heart are their respective positions on whether or not he has implemented the remedial action that she directed in her report into the early pension payout of former South African Revenue Service (Sars) deputy commissioner Ivan Pillay.
In her report, Mkhwebane found that Gordhan’s approval of the early payment of Pillay’s pension, with full benefits, was irregular and directed Ramaphosa to take note of her findings and take appropriate disciplinary action against Gordhan.
Gordhan, however, has taken the case to court on review, prompting the president to await its outcome before taking disciplinary steps.
Ramaphosa said he believed he had complied with Mkhwebane’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 — she did not put a timeframe in place — the appropriate course was to await the outcome of the court case brought by Gordhan. He said he had informed her of all of this in the implementation plan that she had directed him to provide.
Mkhwebane came out guns blazing on Tuesday in her response, suggesting that Ramaphosa was inappropriately siding with Gordhan in their “acrimonious” dispute. “More so when that dispute … involves a minister who is generally regarded as being a close friend or ally of the president’s,” she said.
Mkhwebane and Gordhan are embroiled in litigation about two of her reports: the pension pay-out report and the one into the so-called “rogue unit” at Sars.
In the rogue unit case, where the report gave a 30-day timeframe for implementing remedial action, Gordhan went urgently to court for an interim interdict to suspend the remedial action. The case was heard on Tuesday this week. But, in the pension payout case, he did not.
The public protector said that Ramaphosa’s court case “leaves a sour taste in the mouth”. “Stripped of all pretence, this application seeks to achieve what Minister Gordhan failed to do two months ago, in May 2019, when he consciously, but unadvisedly, launched his review application without seeking interim relief.”
Now, the EFF have applied to join the case, in the public interest. In an affidavit, EFF secretary general Godrich Gardee said the opposition party had no interest in defending the “incumbent of the office of the public protector. But the EFF does have an interest in defending the effectiveness of the office itself”.
Gardee said Ramaphosa’s claim that he had implemented the remedial action was “nothing but tactics, filibustering and brinkmanship”.
He said these tactics were not new — “former president Zuma adopted a similar wait-and-see strategy in response to the former public protector’s Nkandla report”, he said.
Gardee said Ramaphosa had relied on the fact that, in the pension report, he had not been given a time limit for the implementation of remedial action. “The president capitalises on this to argue that all he has to do now is promise to comply, but actual compliance can wait until Mr Gordhan’s review is finished (or sometime else that the president deems appropriate). Points for creativity, but that is no way to comply with the binding remedial action of a public protector’s report.”
He agreed with Mkhwebane that Ramaphosa wanted an interdict “by another name” and that Ramaphosa had failed to make out a case for an interdict.
In replying court papers, filed on Thursday, Ramaphosa said Mkhwebane’s contention that he had taken sides was “spurious”. The point of the case was to obtain certainty — for the parties and the for the public, he said.
“The public protector’s attempt to personalise this matter is truly unfortunate.”