Public Protector Busisiwe Mkhwebane’s decision not to challenge President Cyril Ramaphosa’s interdict against her Bosasa report was allegedly aimed at avoiding another scathing High Court ruling against her.
More than a week ago, the North Gauteng High Court interdicted the implementation of Mkhwebane’s remedial action against Public Enterprises Minister Pravin Gordhan after finding she had failed to provide Gordhan with an opportunity to respond to her prior to publishing her findings on the so-called “Sars Rogue Unit” report.
Now, Ramaphosa has also filed an urgent interdict, arguing that Mkhwebane also failed to allow him an opportunity to comment on her preliminary findings before releasing her Bosasa report in July.
Insiders, who asked to remain anonymous, say Mkwebane’s decision not to challenge Ramaphosa was to avoid the legal backlash she received over Gordhan’s application.
The urgent court action, due to be heard on Monday, followed Mkhwebane’s ruling that Ramaphosa had contravened the Members’ Executives Ethics Act after he allegedly misled Parliament over a R500 000 donation he received from Bosasa for his presidential campaign before the ANC’s elective conference in December 2017.
This week, Mkhwebane’s legal team wrote to the state attorney indicating her intention not to oppose Ramaphosa’s interdict pending the outcome of his review application.
On Wednesday, Mkhwebane’s spokesperson Oupa Segalwe said she was preparing to oppose the final review application.
Mkhwebane’s latest U-turn came after she insisted in court and correspondence to Ramaphosa in relation to two matters involving Gordhan that her remedial actions were binding until set aside by the court.
When questioned about this, Segalwe said: “She is not backing down as suggested by some media. The non-opposition is based on the fact that the review will be conducted on an expedited basis. She will still oppose the review of the report,” Segalwe said.
But insiders said Judge Sulet Potterill’s ruling may have influenced Mkhwebane’s decision not to oppose Ramaphosa’s application to interdict her report.
In her ruling, Judge Poterill said the Public Protector Act (PPA) rendered it mandatory for Mkhwebane to afford any person an opportunity to respond to adverse findings.
“It is argued that even on a narrow interpretation this would include an opportunity for submissions prior to a penalty,” Judge Potterill said.
She granted Gordhan the interdict saying he had been denied the common-law principle of audi alteram partem (listen to the other side).
Eight days before Judge Potterill’s ruling on July 29, Ramaphosa addressed the nation and declared his intention to challenge Mkhwebane’s report.
“The findings are wrong in law, are irrational and, in some instances, exceed the scope of the powers of the public protector,” he said.
“Furthermore, in failing to provide me with an opportunity to comment on proposed remedial action, the public protector has violated provisions of the Public Protector Act, the Constitution and principles of common law.”
Meanwhile, judgment is expected to be delivered on Thursday on Ramaphosa’s application to interdict Mkhwebane on the remedial action on the implementation of disciplinary action against Gordhan, for allegedly paying an early pension payout to former SA Revenue Service deputy commissioner Ivan Pillay in August 2010.