Public Protector Busisiwe Mkhwebane loses, again



The Public Protector has been interdicted by the high court from enforcing the remedial action in her report into an alleged “rogue unit” at the South African Revenue Service (Sars) — until the court has heard full arguments on whether the report should be set aside.

The urgent interim interdict, granted by Pretoria high court judge Sulet Potterill on Monday, means that nothing can happen on the remedial action until the case has been finally decided.

In her report, Busisiwe Mkhwebane made a number of findings, including that an investigating unit of Sars established in 2007 — widely known as the “rogue unit” — was unlawfully formed and had conducted illegal intelligence gathering operations.

Among the remedial actions Mkhwebane directed was an instruction to the president to take disciplinary action against Public Enterprises Minister Pravin Gordhan within 30 days. Another was that the police should investigate what she said was a breach of the Constitution and the National Strategic Intelligence Act.

Gordhan ultimately wants the court to set aside the whole report, but he also applied urgently for an interdict in the interim.

In her judgment, Potterill said the purpose of an interim interdict was to ensure “as far as reasonably possible, that the party that is ultimately successful will receive adequate and effective relief” – when the main case is argued.

The judge found that Gordhan had established a prima facie right on a number of grounds. But she said it was not necessary for her to look at the ground that Mkhwebane was biased or had an ulterior motive – this was a question for argument before the review court.

She also found that if she did not grant the interim interdict, Gordhan would suffer irreparable harm: “Being prosecuted, disciplined and investigated most certainly constitutes harm and the harm may be irreparable and irreversible by the time the review application is heard.”

In looking into irreparable harm, Potterill said it would be “remiss” not to remark on the remedial orders directed by Mkhwebane. “Much of the orders are vague, contradictory and/or nonsensical,” she said.

The judge said that suspending the Public Protector’s remedial action did not weaken her office – “in fact, quite often, the PP’s remedial action has been suspended with interim orders pending review of the PP’s reports. It was thus correctly conceded by counsel for the PP that normally these interim orders are not opposed by the PP”.

Potterill said: “Much criticism was levelled at the President in not supporting the PP as is required from him in terms of the Constitution. The president cannot be criticised for awaiting a court’s decision on suspension of the remedial orders before acting. The president is acting in accordance with the law of the land before he implements any remedial action.”

This part of Potterill’s judgment is relevant for another urgent court case that will be argued on Tuesday about another of the Public Protector’s reports – into the early pension payout of former Sars deputy commissioner Ivan Pillay.

In that report, Mkhwebane also directed disciplinary steps by the president against Gordhan. However, she did not specify a time limit for the remedial action, as she did in the “rogue unit” report. When Gordhan took the report on review Ramaphosa decided that, since there was no time limit stated, he was at liberty to wait for the outcome of the case. Mkhwebane disagreed.

After an increasingly tense exchange of correspondence, the president approached the court for clarity. He has asked the court to declare that he has, in fact, complied with her remedial action. But if the court disagrees, he has asked that the remedial action be suspended pending the outcome of the review.

Another of Potteril’s findings that may be relevant for Tuesday’s case was that Gordhan had established a prima facie right that the Public Protector did not have jurisdiction to investigate the “rogue unit” claims.

The Public Protector Act says she can only look into events that happened within the last two years – unless there are special circumstances. The so-called “rogue unit” was formed in 2007.

Potterill said: “In the report, para 3.5, the Public Protector regurgitates the factors setting out [w]hat could constitute special circumstances. In view of the provisions of this section and the fact that the complaints emanate from a decade ago, one would expect the Public Protector to set out why she has jurisdiction to entertain this claim.”

In court, the EFF argued that it was in the public interest to investigate the “rogue unit” claims as they were still the subject of vociferous public debate. But Potterill said that it was not the EFF’s job to make out a case for the Public Protector. “It is trite that the PP would have to identify the special circumstances, not the EFF,” she said.

In Gordhan’s review application of the pension pay-out report, he makes a similar argument, saying Mkhwebane’s “purported” special circumstances contained “generic circumstances presumably applicable to most complaints made to the Office of the Public Protector”.

Monday’s interim interdict was yet another defeat for the Public Protector, who has been having a torrid time with the courts, in particular the damning judgment of the Constitutional Court last Monday which, in ordering personal and punitive costs against her, found that Mkhwebane had acted dishonestly and in bad faith.

Potterill’s order is the first in the battle between Gordhan and Mkhwebane — being fought out in three separate cases about two reports — one about the early pension pay-out and one about the so called “Rogue Unit”, which both made findings against Gordhan. However, Monday’s judgment and Tuesday’s hearing deal with what is to happen in the interim – while the long term battle is being fought in court. 

Read the full judgment below:

Pretoria high court judgment 1 on Scribd

Pretoria high court judgment 2 on Scribd

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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