Public Protector Busisiwe Mkhwebane. Picture: AFP
Public Protector Busisiwe Mkhwebane. Picture: AFP

Mkhwebane to decide on next move after another court defeat

By Loyiso Sidimba Time of article published Apr 8, 2021

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Johannesburg - No decision has been taken on whether or not Public Protector Busisiwe Mkhwebane will challenge her latest loss in the North Gauteng High Court.

The full bench of the North Gauteng High Court – Judges Elizabeth Kubushi, Mpostoli Twala and Norman Davis – dismissed with costs Mkhwebane’s appeal of their December ruling reviewing and setting aside Mkhwebane’s 2019 report into former acting SA Revenue Service (Sars) commissioner Ivan Pillay’s early retirement.

Pillay’s early retirement and subsequent retention by Sars were approved by Public Enterprises Minister Pravin Gordhan following a recommendation by the taxman’s former commissioner Oupa Magashula, who did not participate in the application for leave to appeal.

The judges declared unlawful and invalid Mkhwebane's decision to exercise jurisdiction over the complaint lodged anonymously in 2016 in terms of the Public Protector Act and reviewed it and set it aside.

Her report, findings and remedial action were also declared unlawful and invalid and reviewed and set aside.

”We are, therefore, of the view that there are no reasonable prospects of success of the appeal. Put differently, we hold the view that there is no prospect that another court may come to a different conclusion in this case. Therefore, the applications for leave to appeal and cross appeal the judgment fall to be dismissed,” Judges Kubushi, Twala and Davis found on Wednesday.

Mkhwebane’s spokesperson Oupa Segalwe told Independent Media that no decision has been taken yet on whether or not to challenge the high court’s latest ruling.

The public protector did succeed in having parts of Gordhan’s founding affidavit that were insulting, combative, rude, condescending, scandalous, vexatious and/or irrelevant struck out by the high court.

Mkhwebane accused Gordhan of making what is nothing short of a gratuitous insult by the wrong person in the wrong forum.

Gordhan argued that Mkhwebane released her report in unseemly haste, that it was informed by improper and ulterior motives and that this was so as to enable the renewal of the ongoing political campaign against the minister by defenders of state capture and corruption.

Mkhwebane said Gordhan was making these claims but did not produce even a single shred of evidence in support.

”The clear meaning of this is that the public protector is a participant or accomplice in a conspiracy, together and in concert with criminal elements, to wit, proponents of state capture and defenders of corruption,” she complained.

Mkhwebane continued: “If this were indeed true, then South Africa’s hard-fought democracy would be irretrievably damaged and such a public protector would be guilty of the crime of treason, punishable by death in many countries. A bigger insult against the public protector is very hard to imagine”.

However, the high court judges found that Gordhan’s statements cannot be construed as scandalous but are merely vexatious and are intended to annoy Mkhwebane.

Gordhan and Pillay’s attempts to cross appeal the high court ruling were dismissed with costs.

Their cross appeal and Mkhwebane’s appeal were against parts of the judgments and orders that were not favourable to them.

The judges said leave to appeal is only granted where the appeal has reasonable prospects of success or when there are compelling reasons for it to be heard.

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