Legal representatives in court where president Cyril Ramaphosa and Public Protector Busisiwe Mkhwebane are squaring off over whether he is obliged to act on her instruction to take action against Minister of Public Enterprise Pravin Gordhan over an early retirement payout to former SARS deputy commissioner Ivan Pillay. PHOTO: Brenda Masilela/ANA

Pretoria - Lawyers representing Public Protector Busisiwe Mkhwebane have argued in court that the staying of the public protector’s remedial action against Pravin Gordhan at “whim” would have a devastating impact on the rule of law. 

Advocate Dali Mpofu, who represented Mkhwebane, told the court that President Cyril Ramaphosa was allowing himself to be a proxy for Public Enterprises Minister Pravin Gordhan in applying to stay the disciplinary action recommended by Mkhwebane. 

Mpofu and lawyers representing Gordhan and Ramaphosa were on Thursday arguing in the president’s application to interdict the recommendation stated in Mkhwebane’s report against Gordhan.

In May, Mkhwebane released her report into her investigation into Gordhan’s handling of former deputy SARS commissioner Ivan Pillay’s early retirement. 
She had found that Gordhan acted unlawfully when he signed off on Pillay’s early retirement in 2010. He was the finance minister at the time. 

As part of her remedial action, Mkhwebane stated that Ramaphosa should take action against Gordhan for violating the Constitution. 

Both Gordhan and Ramaphosa took issue with the report and its remedial action. Gordhan has filed papers to challenge the report and its findings.

Ramaphosa brought the interdict on Thursday and largely argued that he sought the court stay the remedial action pending Gordhan’s review application. 

The president also wants the court to state that he had acted lawfully and had abided by Mkhwebane’s recommendations. His lawyer Hamilton Maenetje SC said Ramaphosa had complied with the remedial action. 

Maenetje stressed that delaying the implementation of the remedial action pending Gordhan’s review application was within the law. 

Gordhan’s lawyer Advocate Michelle Le Roux argued similarly and said there was little the president could do to discipline Gordhan while the minister was legally challenging the report. 

Mpofu for Mkhwebane pulled no punches and told the court that it had become fashionable to insult Mkhwebane and accuse her of being part of state capture. 

He said Gordhan and not Ramaphosa should have brought the application. Mpofu argued that the court cannot issue a declaratory order stating that Ramaphosa had complied with the remedial action because he has, in fact, not done so. 

Mpofu said the whole country could not be held to ransom because of Gordhan. 

“The whole country must be held at ransom for four to five years until Mr Gordhan and Mr Ramaphosa are out of the office to do a simple disciplinary procedure, versus what is on the other side of the scale? The inconvenience of Mr Gordhan driving to the president’s office and just being told, don’t do this again,” Mpofu argued. 

The matter continues.

Political Bureau