File picture: Bongani Shilubane/African News Agency (ANA).

* This story has been updated

CAPE TOWN - THE Public Protector Adv Busisiwe Mkhwebane has withdrawn his leave to appeal to the Constitutional Court challenging a High Court’s decision to stay the implementation of her remedial action on the existence of a “rogue unit” in the South African Revenue Services (Sars) while Public Enterprises Minister Pravin Gordhan was at the helm.

A notice of withdrawal, seen by African News Agency (ANA), states: "...the first and second applicants (Public Protector and Busisiwe Mkhwebane, respectively) hereby withdraw their application for leave to appeal directly this Honourable Court against the whole of the order and judgement granted by Her Ladyship, Potterill J, of the Gauteng division of the High Court on 29 July 2019..."

Last month, Mkhwebane made scathing findings against Gordhan in her report saying the Minister had misled parliament about meeting one of the Guptas.

The Public Protector also found that Gordhan played an instrumental role in the formation of a “rogue unit” which was allegedly used to monitor to day to day lives of several people in the country.

In her remedial actions, she asked the National Director of Public Prosecutions Adv Shamila Batohil and the police to institute prosecutorial and criminal investigations against all those who were allegedly involved in the formation of the so-called rogue unit.

Gordhan took her findings on review. He, however, initially asked the High Court in Pretoria to interdict the implementation of her remedial action pending his review application.

On July 29, Judge Sulet Poterill agreed with Gordhan.

Judge Poterrill ruled against Mkhwebane after she found out that the Public Protector did not afford Gordhan an opportunity to be heard prior to releasing her final “rogue unit” 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 to submissions prior to a penalty. An analogy was drawn with making submissions in a criminal trial prior to sentencing,” Judge Poterill said.

She also granted Gordhan the interdict saying he was denied the common law principle of audi alteram partem (listen to the other side).

Two weeks ago, Mkhwebane appealed Poterill’s ruling at the ConCourt but withdrew her application this week.

Political Bureau and ANA