The Gauteng High Court in Pretoria has ruled that Public Protector Busisiwe Mkhwebane’s remedial action against Public Enterprises Minister Pravin Gordhan be suspended.
Gordhan applied for an urgent interdict last Tuesday to suspend the remedial action in the South African Revenue Service (Sars) so-called ‘rogue unit’ report against him, while he seeks a full judicial review.
Judge Sulet Potterill handed down the decision. Mkhwebane found, earlier in July, that the establishment of the unit, in 2007 was illegal and that it conducted unlawful intelligence. Gordhan was the tax agency’s commissioner at the time.
Her remedial action stated that President Cyril Ramaphosa should discipline Gordhan within 30 days of her report. Mkhwebane also directed the police and National Prosecuting Authority to consider criminal charges against him.
She further gave speaker of parliament Thandi Modise 14 days to refer the public enterprises minister to parliament’s ethics committee to be investigated for violating the ethics code. This deadline passed on July 25.
Gordhan’s legal team argued that he would continue to “suffer baseless, but engineered, reputational damage” if the remedial action was not suspended, pending a full review of the report.
He further advanced that the Sars unit was legally established and the appointment of former deputy commissioner Ivan Pillay, without any qualifications was justified as he had spent his formative years fighting in the anti-apartheid struggle.
The minister of public enterprises said he and the other affected parties had not been given an opportunity to comment on the remedial action by Mkhwebane and the audi alteram partem (hear the other side) principle had been ignored.
Mkhwebane’s legal counsel however argued that the urgent interdict is an insult to her office and threatens the integrity of the Chapter 9 institution.
Monday’s court ruling comes a week after a majority decision by the Constitutional Court found Mkhwebane had not acted in good faith and told several lies under oath, in the litigation around her Absa/Bankorp report.
She was ordered to pay 15% of the SA Reserve Bank’s costs and there have been renewed calls for parliament to remove her and the Legal Practice Council to strike her off the advocates roll.