Public Protector Busisiwe Mkhwebane.   Picture: Jacques Naude/African News Agency(ANA)
Public Protector Busisiwe Mkhwebane. Picture: Jacques Naude/African News Agency(ANA)

Mkhwebane to appeal high court ruling, says judge 'overreached'

By Khanyisile Ngcobo Time of article published Jul 29, 2019

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Johannesburg - Public Protector Advocate Busisiwe Mkhwebane has announced that she will appeal the judgment by the North Gauteng High Court. 

On Monday morning, the high court granted Public Enterprises Minister Pravin Gordhan an interdict to halt the remedial action laid out by Mkhwebane in the SA Revenue Service (Sars) so-called "rogue unit" report against him. 

Gordhan had lodged an urgent application to suspend and interdict the remedial orders by the public protector on her so-called rogue unit, citing "improper motives" on her part. 

Mkhwebane had found that the establishment of the unit was unlawful and that Gordhan, who was Sars commissioner at the time, had violated the Constitution.

Mkhwebane in a statement said she was disappointed in Monday's judgment, adding that Judge Sulet Potterill "overreached".

"Instead of confining herself to matters relating to minister Gordhan’s application for the staying of the implementation of remedial action, the judge went beyond her scope and dealt with merits of the review application.

"In addressing matters she had not been called upon to hear and pronouncing on issues that were not placed before her, Judge Potterill effectively tied the hands of and preempted the outcome of the review court. This raises the question whether there is still a need to continue with review proceedings.

The public protector went on to say: "Further, it is curious that the judge deemed it fit to ventilate Mr [Ivan] Pillay’s qualifications or lack thereof and pronounce on the issue, and yet held that the disparaging remarks that minister Gordhan made against Adv. Mkhwebane in his application for both the review and the interdict, which the Public Protector had requested the court to strike out, be deferred for the review proceedings.

"The Public Protector has also not taken kindly to the fact that, in her ruling, Judge Potterill relied on correspondence between her office and President [Cyril] Ramaphosa even though the letters concerned had nothing to do with the “Rogue Unit” matter before her but related instead to the Pillay pension investigation. In addition, these documents were only handed in at court on the day of the hearing and other parties had not been favoured with an opportunity to engage on them."

Mkhwebane also expressed concern over Potterill’s use of language, which she said was "unbecoming of a judicial officer" and which "does not accord with the decorum of the court". 

"In her ruling, the judge outrageously labelled the public protector’s remedial action 'nonsensical'. The public protector is considering the legal recourse and remedies available to her including forwarding this matter for the consideration of the Judicial Services Commission.

"Another source of disquiet for the public protector is the recent scourge of separating her from the office she holds which Judge Petterill now appears to be perpetuating. In this instance, she made a personal costs order even though none of the parties argued for that.

Mkhwebane confirmed she will appeal Potterill’s ruling.

Additional reporting by ANA

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