Minister of Public Enterprises Pravin Gordan.  File picture: Nhlanhla Phillips/African News Agency (ANA)
Minister of Public Enterprises Pravin Gordan. File picture: Nhlanhla Phillips/African News Agency (ANA)

Gordhan vs Mkhwebane: Court grants interdict against Protector's 'remedial action'

By Lou-Anne Daniels and ANA Time of article published Jul 29, 2019

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Pretoria - The High Court in Pretoria has granted urgent application by Public Enterprises Minister Pravin Gordhan for the suspension of Public Protector Busisiwe Mkhwebane's remedial action against him. 

The case relates to the alleged 'rogue unit' which was set up at Sars during Gordhan's tenure as commissioner.

"The Public Protector was not supposed to entertain the Gordhan matter as it dates far back to about a decade ago," Judge Sulet Potterill said in her judgment on Monday. The Public Protector Act permits for investigations into matters less than two years old.

Potterill ruled that Gordhan has a prima facie right to request the interdict against the remedial action. She said that, contrary to submissions by Mkhwebane's counsel, suspending her remedial action would not weaken the Public Protector's office.

The judge also said that Gordhan had a prima facie case to review Mkhwebane's report and that "much of the orders are vague, contradictory and nonsensical."  She found that there was a clear case to warrant judicial interference.

However, Poterill said that the court would not rule on allegations of bias against the public protector or her fitness to hold office.

While the EFF submitted to the court that the matter did not warrant a judicial hearing, Potterill ruled that Gordhan was within his rights to seek legal recourse.

President Cyril Ramaphosa had submitted it would be inappropriate to take action against Gordhan within 30 days as stipulated in the Public Protector's remedial action in light of a pending judicial review against her report.

The Public Protector wants Ramaphosa to take action against Gordhan whom she found to have breached rules while he was at South African Revenue Service.

Mkhwebane found that Gordhan unlawfully established a high-risk unit aimed at clamping down on various syndicates who were infiltrating the revenue service. She also said Gordhan had broken the rules in a matter in which a senior staffer was reinstated after being awarded early retirement.

The public protector found that Gordhan had misled Parliament on the matter and had thus breached the executive ethics code. She insisted the unit in question was found to have also violated national security over how it had conducted its operations.

Gordhan had argued that Mkhwebane’s findings were flawed and that her investigation process was questionable as she had ignored certain aspects of his submissions.


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