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Despite her withdrawal, Ramaphosa still wants ConCourt to hear Mkhwebane’s appeal



Despite the public protector withdrawing her appeal against the interim interdict of her South African Revenue Service (Sars) “rogue unit” report, President Cyril Ramaphosa wants the Constitutional Court to hear the appeal — to put an end to a damaging public debate.

“This is a matter that implicates the national interest,” the president said in an affidavit filed in the Constitutional Court on Tuesday.

Last week, Public Protector Busisiwe Mkhwebane did a surprise about-turn and withdrew her application for leave to appeal against the order of Pretoria high court judge Sulet Potterill. Mkhwebane would not comment on why she had changed her mind on appealing directly to the Constitutional Court, only saying she had taken legal advice.

Read Mkhwebane’s withdrawal here:

The Public Protector & … by Mail and Guardian on Scribd

READ MORE: Ramaphosa takes on Mkhwebane

Potterill’s order had stayed Mkhwebane’s remedial action including that Ramaphosa take disciplinary action against Public Enterprises Minister Pravin Gordhan — pending Gordhan’s challenge to her report into allegations of a so-called rogue unit at Sars.

In his affidavit to the Constitutional Court, Ramaphosa said: “I am aware that the applicant seeks to withdraw this application for leave to appeal directly to this Court. I resist her attempt to withdraw … and ask that this court holds a full hearing on the application for leave to appeal.”

He said that even though he did not think her appeal had any chance of success, the Constitutional Court should still hear oral argument on it as it raised important constitutional issues.

“In the context of the three high court disputes involving my office and the public protector … those issues have given rise to a heated and sometimes vituperative public debate that is potentially damaging to the executive, the public protector and the courts,” Ramaphosa said.

The Economic Freedom Fighters (EFF) had also applied for leave to appeal against Potterill’s order and have not withdrawn their application. Responding, Ramaphosa repeated that it was in the national interest for the Constitutional Court to put an end to the controversy and hear the appeal despite Mkhwebane’s withdrawal.

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

“The Public Protector, the Presidency, Minister Gordhan and Judge Potterill who decided the present matter, have all been subjected to public attacks that cannot be justified. A fake Twitter account in the name of Judge Potterill was even created in an apparent attempt to discredit her judgment,” said the president.

In these circumstances, there was “a pressing national need” for the highest court to exercise its authority over the central dispute in this case and “end any constitutional law controversy.”

Ramaphosa said he did not know why Mkhwebane had withdrawn her application for leave to appeal but her attitude should not affect the outcome of the application by the EFF. “This is a matter that implicates the national interest. It is not a matter where the interests or strategic choices of an individual litigant should be decisive,” he said.

The “rogue unit” report is one of three politically sensitive public protector reports being separately challenged in court. Another is her report finding a breach of ethics by Ramaphosa in relation to the funding of his CR17 campaign to become president of the ANC.

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

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