Gordhan questions EFF approaching the ConCourt on Mkhwebane’s “rogue unit” report



Public Enterprises Minister Pravin Gordhan has questioned how the Economic Freedom Fighters (EFF) can pursue an appeal in his battle with the public protector over her “rogue unit” report, when she herself has withdrawn her appeal.

“If the Public Protector herself no longer has confidence that this application is appropriate, it is unclear on what basis the EFF can persist in its parasitic application,” said Gordhan 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. She would not comment on why she had changed her mind on appealing directly to the Constitutional Court, only saying she had taken legal advice.

Potterill’s order put on hold Mkhwebane’s remedial action — including that Ramaphosa take disciplinary action against Gordhan — pending Gordhan’s challenge to her report into allegations of a so-called rogue unit at the South African Revenue Service.

Read Mkhwebane’s withdrawal here:

The Public Protector & … by Mail and Guardian on Scribd

President Cyril Ramaphosa wants the Constitutional Court to hear the appeal anyway saying that although he thinks it has no prospects of success, it is in the national interest to lay to rest a damaging public debate.

Read Ramaphosa’s affidavit below:

President Cyril Ramaphosa&#… by Mail and Guardian on Scribd

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

But Gordhan said that the EFF’s persistence in the appeal is part of the party’s “ongoing political campaign against me.”

He said the EFF’s main argument was that the high court gave the interdict too easily, thereby undermining the duties of the functions of the public protector. But all that it did was to put everything on hold until his review application had been decided — to “ensure that the review is not rendered nugatory”.

In its application for leave to appeal, EFF commander-in-chief Julius Malema referred to the Constitutional Court’s 2012 Organisation Undoing Tax Abuse (OUTA) judgment — which dealt with an interim interdict on the levying of e-tolls. Based on the OUTA judgment, he said interim interdicts against the public protector should only be granted in exceptional circumstances.

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

But Gordhan said Potterill’s interim interdict passed the OUTA test and was “merely a routine interim interdict obtained to temporarily preserve the rights of the parties until such time as the pending review can be determined”.

“Interdicts of this nature are granted daily in our busy courts. In fact, during the hearing, counsel for the public protector conceded that normally these interim orders are not opposed by the public protector.

The public protector had not opposed interim interdicts in some of the other cases where her reports where challenged, he said. Her inconsistency on this score was “concerning,” he said.

“So too is the EFF’s selective attitude to the issue, where it only seeks to intervene in pending litigation brought by or relating to me,” he said. “Applications to this court ought not to be the product of opportunism and cynical political calculation.”

Gordhan disputed the EFF’s arguments that the appeal was urgent and that it fell within the jurisdiction of the Constitutional Court. He also said it was not in the interests of justice to grant leave to appeal.

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

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