Public protector Busisiwe Mkhwebane will be back in court again on Thursday. And although it may appear to be yet another instalment in the seemingly never-ending political battle of President Cyril Ramaphosa and Pravin Gordhan vs Busisiwe Mkhwebane and the Economic Freedom Fighters, this particular hearing at the Constitutional Court is hugely important.
The case could set a crucial precedent to be applied in all other cases, including those that involve ordinary people who have turned to the public protector in the face of an uncaring state. Those cases make up the bulk of the protector’s work.
The Constitutional Court’s 2016 Nkandla decision clarified that “remedial action” by the public protector is binding and has to be implemented — unless and until it is set aside by a court. But what if she’s wrong? Then we have to go to court, said the Nkandla judgment. But court processes can take forever. So what happens in the meantime? This is what next week’s case is all about: when, and how easily, a court can grant an interim interdict against the public protector.
Mkhwebane’s report at the centre of this case was about allegations of an unlawfully created investigative unit at the South African Revenue Service (Sars) that went “rogue” and illegally spied on people. She found that the allegations were “substantiated” and directed far-reaching remedial action, including instructing that Ramaphosa take disciplinary action against Gordhan, who was finance minister at the time.
The report was immediately challenged in court by Gordhan, former acting Sars commissioner Ivan Pillay, former Sars commissioner Oupa Magashula and Ramaphosa.
Part B of the case — which is still to come — will determine whether the report was irrational in law and whether Mkhwebane exceeded her powers. Part A was an application for an interim interdict — putting everything on hold until Part B is decided.
Part A succeeded and the interim interdict was granted by Judge Sulet Potterill in the high court in Pretoria. She treated it like any other interim interdict application involving the exercise of statutory powers. She also considered the Constitutional Court’s decision in National Treasury and Others vs Organisation Undoing Tax Abuse (Outa) and Others — the case brought to interdict Sanral from levying e-tolls.
In this case, the Constitutional Court approved the long-standing test for an interim interdict, including its “annotation” by later courts — that unless there is an allegation of bad faith, courts should be slow to grant interim interdicts against organs of state when they are exercising statutory powers. In addition, constitutional values must be considered, including the principle of the separation of powers between the executive, legislature and judiciary.
An interdict against the exercise of statutory power “may be granted only in the clearest of cases and after a careful consideration of separation of powers harm”, said the Constitutional Court.
But the EFF argues that, when it comes to the public protector’s remedial action, it should not be business as usual with interim interdicts. Too easily granting interim interdicts will detract from the very purpose of the public protector — to be accessible to act for the poor and marginalised against powerful and well-resourced government officials.
“In the end, there will be no winners with all these urgent interdicts against the public protect[or], just one loser: the ‘average citizen’ who the public protector is there to protect,” says EFF counsel Tembeka Ngcukaitobi in his written argument.
The EFF wants the court to “tailor” a stricter test, stricter than the Outa test, for when courts will grant interim interdicts against the public protector. “The government official must satisfy the court that an interim interdict will not impermissibly hinder accessibility and effectiveness of the public protector.”
This sounds very convincing in a scenario when the protector is dealing with an average citizen. But the challenge is that the public protector does not deal only with average-citizen scenarios. The Executive Members Ethics Act specifically allows complaints against members of the executive (the president and their Cabinet) from MPs — a potent tool in the hands of opposition parties and one that has been used to great effect by both the Democratic Alliance and the EFF.
As Ivan Pillay’s counsel, Ross Hutton SC, says: “This is clearly not a ‘David and Goliath’ matter as the EFF’s heads of argument would repeatedly have it. Rather it is a battle between several well-armed and well-resourced political figures.”
Gordhan’s counsel, Wim Trengove SC, argues that the law of interim interdicts as it stands is perfectly adequate. The Constitutional Court should not even be hearing the case, he says. It is a “run-of-the-mill application for an interim interdict”.
Of course, an interim interdict should not impermissibly hinder the accessibility and effectiveness of the public protector, he says. But the test that is already in place considers this. This is why, Trengove adds, the public protector has herself acknowledged that, in the normal course of events, she will not fight interim orders. “She consents to these orders precisely because they do not impermissibly hinder or unreasonably interfere with the performance of her functions.”
Trengove adds that the EFF’s test is one-sided: “It fails to strike any balance, for instance, for the protection of those who fall foul of the public protector’s unlawful abuse of her powers. Recent litigation has shown, again and again, that protection of this kind is essential.”
Mkhwebane’s counsel, Thabani Masuku SC, argues that, even on the existing test in Outa, Potterill failed to heed the Constitutional Court’s principles. “To a certain extent, the findings of chapter 9 Institutions are to be treated with the same deference as a court of law.”
But Ramaphosa’s counsel, Matthew Chaskalson SC, argues that Outa’s factoring in the separation of powers actually goes against the public protector. Outa was about protecting the executive from unjustifiable intrusions by other branches of government, he says.
“The logic of Outa determines that it is for the president (and not the courts or the public protector) to decide whether to take the executive action sought by the public protector immediately, or to wait until the pending legal challenge has been determined,” says Chaskalson.
It has been presidents (Zuma and Ramaphosa), banks and opposition parties that have forged the road to the Constitutional Court when it comes to developing public protector law. But it is not only them to which the developments will apply. The principles developed by the courts must be appropriate for the average citizen and president alike.