Busisiwe Mkhwebane, EFF lose to Pravin Gordhan in ConCourt matter

The Constitutional Court has dismissed the EFF and Busisiwe Mkhwebane's application for leave to appeal a high court order that granted relief to Pravin Gordhan in the matter in which Gordhan approved Ivan Pillay's early retirement.
The Constitutional Court has dismissed the EFF and Busisiwe Mkhwebane's application for leave to appeal a high court order that granted relief to Pravin Gordhan in the matter in which Gordhan approved Ivan Pillay's early retirement.
Image: MIKE HUTCHINGS

The Constitutional Court on Friday dismissed applications by the public protector and the Economic Freedom Fighters (EFF) in their battle against public enterprises minister Pravin Gordhan.

The application focused on the question of how courts should approach an application for interim relief to suspend the implementation of remedial action by the public protector against a member of the cabinet, when that member challenges the legality of the remedial action.

The case has its genesis in May last year when public protector Busisiwe Mkhwebane issued a report with adverse findings against Gordhan when he was finance minister in 2009. Mkhwebane ordered President Cyril Ramaphosa to take “appropriate disciplinary action” against Gordhan following her finding that Gordhan's approval of former SA Revenue Service (Sars) deputy commissioner Ivan Pillay's early retirement in 2009 constituted improper conduct.

In July last year, Gordhan launched an urgent application in the high court in Pretoria seeking an order temporarily suspending the remedial action contained in the Sars report, and interdicting the public protector from enforcing it, pending the finalisation of a judicial review in which Gordhan sought to set aside the report.

The EFF and the public protector opposed Gordhan's application but the high court ruled in Gordhan's favour and granted the interim interdict.

It remarked that interim interdicts against the public protector are commonplace in the high courts, and that the remedial actions directed by the reports of the public protector were often suspended by interim orders pending judicial reviews.

Following this judgment, the EFF and the public protector filed an application for leave to appeal the high court judgment.

The court heard the two applications in November last year.

In her submissions, the public protector said the high court did not have due regard for the constitutional status of her office and the effect that an interdict would have on her powers and functions.

In a unanimous judgment written by judge Sisi Khampepe, she said the interim interdict test that has been developed through case law was sound and has sufficient safeguards to ensure the public protector is not denuded of her powers when an interim order is granted against her.

“This test is broad and supple enough to take into account the constitutional role and functions of the public protector, and to ensure she is not inadvertently stripped of her powers,” Khampepe said.

Khampepe said in this case, the public protector has performed the duties and functions the constitution requires of her.

“As I have stated before, the Sars report has been completed. Her powers have been exercised and the Sars report has been published. The interim interdict sought in the high court therefore did not have the effect of subverting her constitutional powers,” Khampepe said.

She said once a report was published and made available for public consumption, it was difficult to understand how an interim interdict against the enforcement of the remedial action hindered the effectiveness of the public protector.

“How would an interim interdict hinder the public protector in the exercise of her powers, or prevent her from exercising her functions once the report is released and in the public domain?” Khampepe asked.


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