This is over a report she released on the SA Revenue Service (Sars) rogue unit involving Public Enterprises Minister Pravin Gordhan and former deputy Sars commissioner Ivan Pillay.
Presiding over the matter, Judge Sulet Potterill on Tuesday indicated she would prioritise the urgency of the case to ensure involved parties complied with Mkhwebane’s deadlines.
Mkhwebane had given Ramaphosa 30 days within releasing her report to act against Gordhan and National Assembly Speaker Thandi Modise until August 4 to implement her orders - an action Potterill said warranted her to act urgently.
Meanwhile, in a showdown inside courtroom 2D, Mkhwebane and Gordhan faced off over the minister’s urgent application to halt her from enforcing her remedial actions and compel President Cyril Ramaphosa to act against him.
Gordhan’s attorney, advocate Wim Trengove SC, said Mkhwebane’s orders had to be suspended immediately as his client had taken Mkhwebane’s report on judicial review and sought for this to be completed first.
In his heads of argument, Gordhan maintained that the report Mkhwebane released early this month was a “product of serious errors of fact, errors of law and demonstrable bias.”
He highlighted that Mkwebane’s insistence that her orders be implemented as soon as possible, regardless of the outcome of the review, undermined the rule of law and his constitutional right.
Trengove said contrary to Mkhwebane’s report, Sars never dabbled in national security matters or acted illegally and intercepted phone calls while Gordhan was at the helm.
He further said Mkhwebane’s position that Gordhan had misled Parliament and violated the executive ethics code was an “irrational finding, devoid of any supporting evidence whatsoever and pointed out that she had failed to afford Gordhan a chance to respond.
“It would moreover clearly be unlawful for the president to discipline Minister Gordhan without affording him a hearing,” he said.
In a heated response to insulting remarks allegedly made by Gordhan to Mkhwebane over her report, the public protector’s attorney Thabani Masuku emphasised that Gordhan’s stance that Mkhwebane was a liar and peddler of fake news was not consistent with his duty to protect the Chapter 9 institution.
“When you accuse the public protector of state capture you are neither complying with a section that says organs of state need to protect the public protector’s office.
“There legal grounds that the findings of PP can be dealt with without calling her names,” Masuku.
He added: “Can she (public protector) walk freely without being called an enabler of state capture This attitude should not be allowed.”
He added that Gordhan had a right to review the decision without tarnishing the public protector. Representing Ramaphosa, advocate Matthew Chaskalson SC maintained that Mkhwebane’s instruction for the president to take action against Gordhan and provide her with an implementation plan at a set time to avert a “constitutional crisis” was indicative of her “forcing” him to act and violate his duties as president.
Also jumping into the fray, Pillay, who is the eighth respondent in the matter and is currently out of the country, through his lawyer Ross Hutton protested that his rights had been adversely affected by Mkhwebane’s reports, saying he supported Gordhan’s application.
Mkhwebane implicated Gordhan in misconduct, maladministration and criminality for establishing the alleged rogue unit.
Advocate Piet de Jager speaking on behalf of former Sars head of human resources Oupa Magashula said the finding by Mkhwebane against his client that he was guilty of perjury was far-fetched and irrational and should be set aside.
Magashula maintained that despite him informing Mkhwebane that he was not aware that a rogue unit existed when he was at Sars, her insistence that it did and to rope him into the saga had also tarnished his reputation.