Johannesburg - The schism between President Cyril Ramaphosa and Public Protector Busisiwe Mkhwebane widened on Monday when she accused the president of having been given poor legal advice that resulted in his not implementing her recommendations against Public Enterprises Minister Pravin Gordhan.
Mkhwebane and Ramaphosa have, since May 25, been engaged in political wrestling after she found that Gordhan had acted unlawfully by approving the early retirement of former SA Revenue Service (Sars) deputy commissioner Ivan Pillay, with full benefits.
Mkhwebane said the fact that Gordhan had taken her findings over the early retirement matter on judicial review did not mean that he could not implement the unspecified remedial action she recommended in May.
Speaking through her spokesperson, Oupa Segalwe, Mkhwebane said the only way Ramaphosa could stop the implementation of remedial action would be through an appeal against the findings.
“A court order interdicting implementation pending review proceedings is the way to go,” Segalwe said.
“A distinction must be drawn between a (judicial) review and an appeal. In the latter, the implementation would be stayed pending the outcome. In addition, we do this with all our reports, not just the Pillay/Gordhan matter.”
Segalwe said Mkhwebane had already written to Ramaphosa to tell him that his refusal to implement the findings because of the pending review was based on incorrect legal advice.
“The president wrote to the public protector indicating that he was unable to implement her remedial action on the Sars/Pillay matter as the matter had been taken on review. This prompted the public protector to write back, pointing out that the mere institution of review proceedings does not suspend the implementation of the remedial action.
“The public protector believes the president has been given the wrong legal advice. She hopes he will do the right thing after her latest correspondence to him,” he added.
Ramaphosa’s spokesperson, Khusela Diko, did not respond to specific questions about why the president was not following Mkhwebane’s legal advice.
Instead, Diko detailed the fight between the president and the public protector. She said that there was a dispute pending before the courts over the legality of the findings on which to base the recommended disciplinary action.
“Furthermore, this dispute legally challenged the president’s alleged power to exercise such disciplinary action. In the event, the president submitted to the public protector that the process of taking appropriate disciplinary action against Minister Gordhan would best be served by waiting until the legal processes of his review proceedings were concluded.
“The president therefore indicated to the public protector his intention to defer his decision on what disciplinary action, if any, to take against Minister Gordhan until final determination of the minister’s review application,” Diko said.