Public Protector Busisiwe Mkhwebane said she would appeal Monday’s court order suspending her remedial action against Public Enterprises Minister Pravin Gordhan, saying Pretoria high court Judge Suret Potterill had “overreached”.
An interim interdict was granted by Potterill, after she found that Gordhan had established a prima facie right on a number of grounds and would suffer irreparable harm if it was not granted. Unless set aside on appeal, the judgment means that nothing can be done on the remedial action until the courts have finally decided whether to set aside the report as a whole.
While interim orders are not generally appealable, the Constitutional Court has found that they can be appealed if it is in the interests of justice.
In the so-called “rogue unit” report, the public protector found that Gordhan deliberately misled Parliament when answering a parliamentary question about meeting the Guptas, that he had authorised the establishment of an intelligence gathering unit within the South African Revenue Service “in violation of intelligence prescripts” and that the unit had conducted unauthorised operations.
In a statement on Monday evening, the public protector said she was disappointed by Potterill’s judgment: “Instead of confining herself to matters relating to Minister Gordhan’s application for the staying of the implementation of remedial action, the judge went beyond her scope and dealt with [the] merits of the review application.”
The statement said Potterill had “address[ed] matters she had not been called upon to hear and pronouncing on issues that were not placed before her”. This “effectively tied the hands of and pre-empted the outcome of the review court”.
The public protector “has also not taken kindly” to Potterill’s reliance on correspondence between her office and President Ramaphosa “even though the letters concerned had nothing to do with the “rogue unit” matter before her but related instead to the Pillay pension investigation”.
The correspondence was handed up by the president’s counsel Arthur Chaskalson SC during the hearing to show how the public protector had been inconsistent in her approach to interim interdicts — and is quoted extensively in Potterill’s judgment. The public protector said that, because the letters were only handed up on that day, the “other parties had not been favoured with an opportunity to engage on them”.
Mkhwebane also objected to Potterill’s “unbecoming” use of language, in particular describing parts of her remedial action as “nonsensical”. The public protector said she was forwarding this matter for the consideration of the Judicial Service Commission.
She said she was also disquieted by “the recent scourge of separating her from the office she holds”. She said Petterill appeared to be perpetuating this by making a “personal costs order even though none of the parties argued for that”. The judge ordered that the public protector, Mkhwebane in her personal capacity and the Economic Freedom Fighters be jointly and severally liable for the costs of the interim interdict.