Mkhwebane report caused 'irreparable harm', Gordhan argues

Minister of Public Enterprises Pravin Gordhan has argued in the High Court in Pretoria that the remedial orders issued by the Public Protector in a report against him are "erroneous" and have caused "irreparable harm" to his reputation.

The minister is asking the court to suspend Busisiwe Mkhwebane's binding remedial orders and interdict her office from enforcing them until a judicial review of her report is concluded. 

In a report released on July 5, Mkhwebane found that Gordhan had violated the Constitution and the Executives Ethics Code, in a report that related, among other things, to the establishment of the 'rogue unit' in 2007. 

Gordhan was at the time the South African Revenue Service (SARS) commissioner. Mkhwebane found that the establishment of the unit was unlawful and instructed President Cyril Ramaphosa to take appropriate disciplinary action against Gordhan.

In his submission, Gordhan’s lawyer, Advocate Wim Trengove, stated that Mkhwebane’s findings relied on an earlier report by Advocate Muzi Sikhakhane, which has been rejected.

He said that the Public Protector failed to afford Gordhan a chance to be heard before deciding on the remedial action.

Sikhakhane’s conclusion was "obviously wrong", he argued, adding that it had been repudiated by the Nugent Commission as well as Judge Frank Kroon, who chaired the SARS Advisory board.

Trengove further argued that it would be unlawful for Ramaphosa to discipline Gordhan without affording him a hearing.

He said that SARS was within its legal framework when it established the unit tasked with probing illicit economy activity which impacts revenue collection.

It was established as part of government’s commitment to fighting organised crime, he told the court.

"There is no basis, in fact or in law, for the Public Protector’s findings to the contrary," said Trengove.

Mkhwebane had said that the unit was in breach of Section 209 of the Constitution.

Trengrove submitted that this was a distortion of the law, and that Gordhan’s application for the review of the report was on the basis that it was "biased" and had "ulterior motives".

He further argued that the remedial orders had been used to "cast aspersions" on Gordhan’s character, "malign his reputation, and adversely affect his standing as Minister of Public Enterprises".

Mkhwebane stated that Gordhan’s disciplinary action should take place within 30 days of the release of the report. The timeframe expires on August 4.

The Public Protector's legal representative, Thabani Masuku, rejected the motive behind the challenge, pointing to constant attacks that Mkhwebane has endured as a result of her work, which he said undermined her office.

"The remedial action is meant to correct the wrongs that the Public Protector found," Masuku argued, adding that she was merely performing her duty of holding the bearers of public office to account.

"An interdict will frustrate the action of holding the executive to account. If the interdict is granted, it would convey a message to the public that what has been said to her is correct...that he is captured," Masuku said.

The hearing continues.

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