Legal representatives in court where president Cyril Ramaphosa and Public Protector Busisiwe Mkhwebane are squaring off over whether he is obliged to act on her instruction to take action against Minister of Public Enterprise Pravin Gordhan over an early retirement payout to former SARS deputy commissioner Ivan Pillay. Photo: Brenda Masilela/ANA.

PRETORIA - Advocates for President Cyril Rampahosa and Public Enterprises Minister Pravin Gordhan on Thursday insisted the president should await the outcomes of a judicial review before implementing disciplinary action as directed by the Public Protector. 

On the other side, Busisisiwe Mkhwebane's legal team argued Ramaphosa and Gordhan have created a trend of insulting the Public Protector before approaching the courts to seek relief.

Ramaphosa and Mkhwebane were on Thursday squaring off in the North Gauteng High court over whether the President is obliged to act on her instruction to take action against Gordhan over an early retirement payout to former SARS deputy commissioner Ivan Pillay.

The court application comes after Mkhwebane in late May released a report which found that Gordhan was not authorised to approve the early retirement with full benefits of Pillay in 2010.  

Gordhan was finance minister at the time. After the early retirement was granted, SARS re-appointed Pillay in the same position on a fixed-term contract.

Ramaphosa's counsel, advocate Hamilton Maenetje, argued that Ramaphosa had complied with an instruction by Mkhwebane that he provide an implementation plan detailing the action he would take within 30 days of the release of the Pillay report.

"The president had done so, providing a plan that explained he would await the outcome of Gordhan’s Pillay report review before taking any action against him," Maenetje argued.

Maenetje further argued that the president’s approach had been endorsed in the ruling given by judge Sulet Potterill earlier this week, where she found that Ramaphosa could not be faulted for waiting for the outcome of Gordhan’s challenge to another one of Mkhwebane’s reports involving Gordhan. The case involved Mkhwebane's report that Gordhan had illegally established a rogue intelligence unit within SARS.

Advocate Michelle Le Roux, for Gordhan, argued that until the judicial review is complete, the president can't take disciplinary action.

"It's impossible at the moment for the president to rationally decide on appropriate action," she said. 

Le Roux told the court that Gordhan's granting permission for Pillay's early retirement as deputy SARS commissioner was a model of executive decision making, explaining the minister received expert legal advice from six people. 

Dali Mpofu, for Mkhwebane, scoffed at Ramaphosa's argument saying it was a joke and that the Public Protector was the only person who could approve the implementation plan.

Mpofu went on to dismiss Maenetje and Le Roux's arguments, saying previous rulings staying the Public Protector's remedial action, pending review, are different to this case. He said on this matter, Ramaphosa applied for the matter to be stayed.

Mpofu also took aim at Ramaphosa's legal papers, saying first year students would find it inconsistent.

He argued that delaying the Public Protector's remedial action on a whim would be detrimental to the country and its laws.

"In other words the whole country must be held at ransom for four or five years, remember what they are saying is that this whole thing must be held for stay for the review including appeals.  

We know that can take three, to four or five years. So the entire country must be at a stand still for four or five years until Mr Gordhan and Mr Ramaphosa are out of office to do a simple disciplinary procedure versus what is on the other side of the scale," said Mpofu. 

The matter continues.

African News Agency (ANA)