Public Protector Busisiwe Mkhwebane. (David Harrison/M&G)
In yet another court defeat for the Public Protector, the high court on Thursday ordered in favour of President Cyril Rampahosa in his battle against advocate Busisiwe Mkhwebane over her report into the early pension pay-out to former Sars deputy commissioner, Ivan Pillay.
In her report, Mkhwebane found that the approval of the pay-out, with full benefits, by then finance minister Pravin Gordhan, was irregular. She instructed the president to take appropriate disciplinary action against Gordhan.
Gordhan then challenged the report in court on review.
The president locked horns with Mkhwebane when he wrote to her saying that, since there was no time limit specified in her remedial action, the appropriate course of action was to await the outcome of Gordhan’s review process. But Mkhwebane — supported in court by the Economic Freedom Fighters — argued that this was effectively not implementing the remedial action. The proper course of action was for Gordhan to have sought an interim interdict, she argued.
On Thursday, Judge Molopa-Sethosa said the president’s approach was “rational and reasonable”. She said it was not comparable to what former President Jacob Zuma did when he was directed to pay back some of the costs of upgrading his Nkandla homestead, which was to institute a “parallel process” by Parliament.
The judge said it was unreasonable to demand that the president must take action “without having regard to a pending court review”.
Molopa-Sethosa’s judgment and the interim interdict by Judge Sulet Potteril last month over Mkhwebane’s “rogue unit” report have together put on ice any immediate steps against Gordhan — and will give some breathing room to the president and Gordhan as Gordhan and Pillay proceed with their review applications in the long term.
Ramaphosa is also in another, separate, battlewith Mkhwebane over her Bosasa report, which found that he had deliberately misled Parliament over a donation to the CR17 ANC presidential campaign and breached the executive ethics code by not disclosing all his donation to Parliament.
This week, Mkhwebane said she would not oppose his application for an urgent interim interdict as he had also asked that the main review case be heard urgently.