Johannesburg - Public Protector Busisiwe Mkhwebane finds herself under immense pressure after being dealt yet another blow over her legal battle with Public Enterprises Minister Pravin Gordhan.
Mkhwebane is set to appeal the judgment set down by the North Gauteng High Court on Monday.
In a statement released on Monday night, Mkhwebane said in delivering her judgment she was of the view that Judge Sulet Potterill ‘overreached’ her duties.
“Instead of confining herself to matters relating to Minister Gordhan’s application for the staying of the implementation of remedial action, the judge went beyond her scope and dealt with merits of the review application.
In addressing matters she had not been called upon to hear and pronouncing on issues that were not placed before her, Judge Potterill effectively tied the hands of and pre-empted the outcome of the review court.
This raises the question whether there is still a need to continue with review proceedings, Mkhwebane said.
Mkhwebane also raised concerns over Potterill’s use of language in her judgement saying it was “unbecoming of a judicial officer” and is not within the decorum of the court.
Meanwhile, Gordhan has set his sights on challenging the technical aspects of Mkhwebane’s report.
His spokesperson Adrian Lackay confirmed that Gordhan was proceeding with the application he had already filed in court to take Mkhwebane’s report on judicial review.
“We are waiting for a court date.”
But Gordhan’s legal battles could be far from over, as the EFF has indicated it would appeal against the judgment.
In her ruling, Judge Sulet Potterill ordered that Mkhwebane’s remedial action be suspended immediately, pending the judicial review.
She also rejected the EFF’s assertions that the high-risk unit established at Sars in 2007 breached national intelligence security, and carried out unlawful actions such as intercepting people’s phone calls. Judge Potterill said nowhere had the public protector found that it was a spying unit.
She pointed out that Mkhwebane had not allowed Gordhan to make his submissions before meting out her remedial actions - which among others, included that President Cyril Ramaphosa institute disciplinary action against Gordhan.
Responding to Mkhwebane’s submissions, through her lawyer Thabani Masuku, that the minister had insulted her over her report and that granting Gordhan interim relief would weaken her office, Judge Potterill said: “Gordhan has in no uncertain terms said the PP is incompetent, irrational and negligent in performing her duties.”
She added that Ramaphosa could not be criticised for waiting for Gordhan to get his house in order to first resolve the judicial review.
She was also scathing about Mkhwebane’s suggested remedial actions against Gordhan, saying the prescribed instructions by the PP were vague, contradictory and nonsensical.
She said it was questionable that Mkhwebane wanted Ramaphosa to provide her with a plan of action he would be taking against Gordhan, while in the same breath insisting that he take action within 30 days.
Mkhwebane was ordered to pay the costs.
University of the Free State Professor Dr Ina Gouws said the indication that Mkhwebane did not appear to be fully able to employ the law efficiently in her investigations was detrimental to the office of the Chapter 9 institution.