Public protector Busisiwe Mkhwebane is incorrect by trying to force President Cyril Ramaphosa to take action against public enterprise minister Pravin Gordhan while the matter is still before the courts.
This is according to a constitutional law expert Professor Koos Malan who said that any legal matter challenged in court automatically gets suspended.
Mkhwebane and Ramaphosa have been at loggerheads over her remedial action which called for disciplinary action to be taken against Gordhan for 'wrongfully' approving SA Revenue Service's former deputy commissioner Ivan Pillay's early pension payout.
Malan said Ramaphosa was correct by not taking any action against Gordhan yet.
"As a very general rule, whenever something is taken on judicial review, that which is being challenged - in this case a decision by the public protector - is suspended," said Malan.
"Why is that the case?
"If it doesn't [get suspended] it means that what the public protector directed should actually happen and that implies that the court will essentially not be given the opportunity to actually review the matter, because there's a risk that it would be water under the bridge because everything has already happened."
Ramaphosa’s spokesperson Khusela Diko maintained that the president had complied with Mkhwebane’s recommendations as she had asked the president to: take note of the findings against Gordhan, take disciplinary action against him and submit within 30 days an implementation plan on how he would fulfill her remedial action.
“She does not give him a deadline on the disciplinary action. The only deadline is on the implementation and we have given her a plan,” said Diko.
In his court paper, Gordhan accused Mkhwebane of trying to influence Ramaphosa’s cabinet when she finalised and released the report a day before the presidential inauguration.
“This remedial action, coupled with the suspicious haste with which the Report was finalised the day before the Presidential inauguration, is also reviewable since it may be inappropriately aimed at seeking to influence powers exclusively reserved to the President in selecting the members of his cabinet,” the court paper read.
The court outcome on this, according to Diko, will assert the president’s powers on what type of disciplinary action he can take since Gordhan is a Minister, not an employee of President.
Ramaphosa is correct to not act on Gordhan, says prof
Public protector Busisiwe Mkhwebane is incorrect by trying to force President Cyril Ramaphosa to take action against public enterprise minister Pravin Gordhan while the matter is still before the courts.
This is according to a constitutional law expert Professor Koos Malan who said that any legal matter challenged in court automatically gets suspended.
Mkhwebane and Ramaphosa have been at loggerheads over her remedial action which called for disciplinary action to be taken against Gordhan for 'wrongfully' approving SA Revenue Service's former deputy commissioner Ivan Pillay's early pension payout.
Malan said Ramaphosa was correct by not taking any action against Gordhan yet.
"As a very general rule, whenever something is taken on judicial review, that which is being challenged - in this case a decision by the public protector - is suspended," said Malan.
"Why is that the case?
"If it doesn't [get suspended] it means that what the public protector directed should actually happen and that implies that the court will essentially not be given the opportunity to actually review the matter, because there's a risk that it would be water under the bridge because everything has already happened."
Ramaphosa’s spokesperson Khusela Diko maintained that the president had complied with Mkhwebane’s recommendations as she had asked the president to: take note of the findings against Gordhan, take disciplinary action against him and submit within 30 days an implementation plan on how he would fulfill her remedial action.
“She does not give him a deadline on the disciplinary action. The only deadline is on the implementation and we have given her a plan,” said Diko.
In his court paper, Gordhan accused Mkhwebane of trying to influence Ramaphosa’s cabinet when she finalised and released the report a day before the presidential inauguration.
“This remedial action, coupled with the suspicious haste with which the Report was finalised the day before the Presidential inauguration, is also reviewable since it may be inappropriately aimed at seeking to influence powers exclusively reserved to the President in selecting the members of his cabinet,” the court paper read.
The court outcome on this, according to Diko, will assert the president’s powers on what type of disciplinary action he can take since Gordhan is a Minister, not an employee of President.
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