Johannesburg - Public Protector Busisiwe Mkhwebane has told the Constitutional Court the interim interdict granted to Public Enterprises Minister Pravin Gordhan amounts to unconstitutional interference with her functions.
In heads of arguments filed last Friday, Mkhwebane insists that the order strips her of her constitutional power and undermines her independence, impartiality, dignity and effectiveness.
“The court a quo (high court) issued orders that exposed the public protector to unprecedented institutional and personal attacks by members of the executive and legislature that threaten to eviscerate the constitutionally protected independence impartiality, dignity and effectiveness of the public protector,” Mkhwebane told the court.
She complained that the
interdict granted to Gordhan was now being used in highly charged political
platforms, including Parliament, to support calls for her removal from office.
“All the respondents, especially the first respondent (Gordhan), have not stopped hurling insults at the public protector and stirring unprecedented political antipathy towards her constitutional work after these orders were granted, including issuing
condemnatory public statements intended to support the campaign for her removal from office,” Mkhwebane stated.
In July, North Gauteng High Court Judge Sulet Potterill granted Gordhan an interim interdict against the implementation of Mkhwebane’s remedial action, ordering President Cyril Ramaphosa to take action against him for the establishment of the so-called Sars rogue unit.
But Mkwebane has warned that if Potterill’s judgment was left unchecked, politicians and public servants will rely on it to abdicate their constitutional duties to assist and protect her to ensure independence.
She said the judgment will create a free for all environment in which she will be attacked, undermined and ultimately forced out of office before her term ends in 2023.
According to Mkhwebane,
Gordhan has not hidden his antipathy towards her and his determination to have her axed for making adverse findings against him.
She said the high court order impacted on her independence and her duty to perform her functions without fear, favour or prejudice.
Mkhwebane accused Potterill of ignoring serious allegations of
corruption and state capture, creating the impression that Gordhan’s attacks on her were justified.
“Ignoring unjustified allegations that the public protector’s report was the product of corruption, specifically denied by the public protector, was a failure to exercise proper judicial discretion in the granting of the
interdictory relief.
“In this regard, the court a quo ignored the version of the public protector, which if there were a prima facie basis for, could justify the extraordinary remedy of suspension and an interdict,” reads Mkhwebane’s heads of argument.
She said the high court also ignored her application to strike out
Gordhan’s “scandalous and unjustified”
allegations of corruption and state capture against her.
Mkhwebane said this proved that Potterill was biased against her and that she (Potterill) would not be alarmed at allegations that
constitutional power was used in a corrupt manner to advance corruption and state capture.
Mkhwebane maintains that the interdict was granted on the back
of a false and scandalous allegation
of corrupt abuse of constitutional power which damages her independence, impartiality, dignity and effectiveness.
The matter will be heard on November 28 along with the EFF’s application to overturn the interdict granted by Potterill.