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Public Protector, EFF head straight to ConCourt over interdict of ‘rogue unit’ report



Urgent guidance is needed from the Constitutional Court on the right way to handle urgent interim interdict applications against the public protector, advocate Busisiwe Mkhwebane and Economic Freedom Fighters (EFF) leader Julius Malema have said in court papers.

The public protector and the EFF have both gone directly to the Constitutional Court seeking to appeal the interim interdict that suspended the remedial action in Mkhwebane’s report on the so-called rogue unit at the South African Revenue Service (Sars). They filed their applications for leave to appeal on Tuesday.

“Very powerful members of the national executive including the head of the executive have mounted an unprecedented attack on the office of the public protector. If this honourable court does not intervene urgently, the constitutional basis on which the public protector was established would be severely undermined. The constitutional role of the public protector is at stake,” Mkhwebane said in her affidavit.

Mkhwebane and Malema want the ConCourt to overturn the order by Judge Sulet Potterill which suspended Mkhwebane’s remedial action in her “rogue unit” report, including a direction that President Cyril Ramaphosa take disciplinary steps against Public Enterprises Minister Pravin Gordhan. In the report, Mkhwebane found that Gordhan had misled Parliament when he answered a parliamentary question about meeting the Guptas.

Usually, appeals go first to a full bench of the high court or to the Supreme Court of Appeal. Direct appeals to the highest court are granted when it is in the interests of justice.

Mkhwebane argued it was appropriate to go straight to the highest court in the country because the ConCourt would give “invaluable guidance” on what circumstances would justify suspending a constitutional remedy directed at curing government maladministration.

“To suspend a remedial action to assuage the wounded feelings of a functionary must not be elevated above the public interests involved in the remedial action,” Mkhwebane said.

In his affidavit, Malema referred to the oft-quoted paragraph of the Nkandla judgment, that the public protector was “the embodiment of a biblical David … who fights the most powerful and very well-resourced Goliath”.

With Potterill’s judgment “David’s sling — the public protector’s ability to take remedial action — has been taken away, undoing much of this court’s hard work in [Nkandla],” Malema said.

Mkhwebane said that Poterill had gotten it wrong in a number of respects, including when she found that Gordhan had a right to be heard by the public protector specifically on the remedial action she was taking. The right to be heard by the public protector in the Public Protector Act was “specifically tailored for the investigation stage” and there was no additional right to be heard after that.

“This sinister attempt to get the Public Protector mired in endless hearings involving a single case and the calculated attempt to get her bogged down in multiple hearings is antithetical to the Constitution’s envisaged ‘purpose-built watch-dog’,” Mkhwebane said.

Referring to the Constitutional Court’s 2012 Organisation Undoing Tax Abuse (OUTA) judgment — which dealt with an interim interdict on the levying of e-tolls — Malema and Mkhwebane said an interim interdict against the public protector was not any ordinary interdict and should only be granted in exceptional circumstances and in the clearest of cases.

“If we take OUTA seriously, Mr Gordhan should not have gotten his interdict,” Malema charged.

Malema said rushing to court for urgent interdicts against the public protector was “litigation du jour”.

“In the end, there will be no winner with all these urgent interdicts, just one loser: the ‘average citizen’ who the public protector is there to protect.”

Interim interdicts against the public protector are also a relatively new area of law, Malema said, adding that they raised delicate separation of powers issues. The highest court’s guidance was “urgently needed,” he said.

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

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