Pretoria - Public Enterprises Minister Pravin Gordhan on Wednesday lodged an urgent application to suspend and interdict the remedial orders by the Public Protector Busisiwe Mkhwebane, citing "improper motives" on her part and arguing that she is unfit to hold the Office of Public Protector.
Mkhwebane recently made devastating findings against Gordhan, a key ally of President Cyril Ramaphosa, for his role in the establishment of a so-called rogue spying unit at the SA Revenue Service.
In her report, released at a media briefing in Pretoria last week, Mkhwebane directed Ramaphosa to "take note of the findings in this report in so far as they related to the erstwhile minister of finance Mr Gordhan and to take appropriate action against him for his violation of the Constitution and the Executive Ethics Code within 30 days of issuing this report".
But Gordhan, through his legal team, hit back and on Wednesday asked the high court to declare that the Public Protector’s remedial orders are suspended, until the judicial review of the report is concluded.
He also asked that the court interdict the Office of the Public Protector (first respondent) and Adv Busisiwe Mkhwebane (second respondent) from enforcing the remedial orders until a judicial review of the report is concluded.
"Whilst I have great respect for the Office of the Public Protector, I doubt the competence, integrity, legal literacy and constitutional grasp of its incumbent of her powers, duties and functions," Gordhan said.
"Whilst it is unfortunate that these sentiments must be expressed, I maintain that the suspension and interdict will be in the overall interests of justice because I strongly doubt the bona fides of the Public Protector in investigating and issuing the Report."
Mkhwebane had said that she "looks forward to the full implementation of remedial action in all these reports" and added that "I reiterate that the mere action of instituting review proceedings does not suspend implementation.
"If anyone wishes to both institute review proceedings and suspend the implementation, I advise them to obtain a court interdict staying implementation. It is important that we draw a distinction between an appeal and a review. Failure to do this might amount to acting in a manner that is inconsistent with the Constitution and the law," said Mkhwebane at the time.
The Public Protector has been investigating the alleged establishment of an intelligence unit in violation of the country’s intelligence code during Gordhan's tenure as SA Revenue Service (Sars) commissioner in 2007.
Mkhwebane said evidence indicated that Sars established and operated a unit that gathered information covertly.
But Gordhan's application argues that the Public Protector misunderstands the law to arrive at a pre-determined outcome relating to the powers of intelligence services.
"There is no legal obstacle to Sars establishing an investigative unit to deal with the tax implications of organized crime and illicit trade like cigarette smuggling," the application reads. "In fact, this capacity is being re-established thanks to the findings and recommendations of the Nugent Commission of Inquiry."
Gordhan argues that the Public Protector's report "ignores facts and their significance to reach its findings regarding the establishment of the Sars investigative unit".
Among these are the discredited Sikhakhane panel report and its erroneous legal reasoning, the Sunday Times’ apology in April 2016 for its reporting relating to the Sars unit, Judge Kroon’s apology to the members of the unit for not interrogating the issues and making wrong findings, KPMG’s withdrawal of its report and refunding of the fees earned for it.
As such, the application by Gordhan seeks to review and set aside the report and have it declared unlawful, unconstitutional, irrational and invalid.
Gordhan further seeks to have it declared that the Public Protector Advocate Mkhwebane "personally, dishonestly or, alternatively, recklessly made her findings in the report against Gordhan, in that they knew that the findings were false or were reckless as to their truth".
Questioning the bona fides of the Public Protector, Gordhan said Mkhwebane's office had confirmed that "I am the subject of three ongoing investigations by her office, I am not aware of anyone who has been singled out and pursued by her office in this way…"
"Instead of dealing with the pressing complaints of citizens, she is using the office for ulterior motives or the political motives of others," Gordhan argues.
"My belief is that the resources of this esteemed office are best employed doing what it was constitutionally envisioned to do i.e. protect the public from ongoing maladministration and not abused for improper and blatantly political motives."
Gordhan concludes by arguing that "once again, she has demonstrated that she is unfit to hold the Office of Public Protector".